Two groups of doctors filed separate lawsuits in federal district courts seeking to overturn a California law penalizing physicians for COVID-19 “misinformation or disinformation.”
AB 2098, which goes into effect January 1, expands the definition of “unprofessional conduct” to include “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.”
AB 2098 defines misinformation as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.” Disinformation is defined as “misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.”
The California Medical Board and Osteopathic Board have the authority to discipline physicians charged with unprofessional conduct. AB 2098 directs the boards to consider the intent, scope, and nature of the offending COVID-19 information in determining disciplinary action, which could include license revocation, suspension, and mandatory retraining.
‘Weapon to Intimidate Doctors’
McDonald v. Lawson, filed in October by the Liberty Justice Center (LJC) against the California Medical Board and the state’s Attorney General on behalf of two California physicians, alleges AB 2098 violates the First and Fourteenth amendments.
An article on LJC’s website states: “Two doctors are standing up against the power grab by California bureaucrats to protect physicians’ free speech rights and to ensure they can advise their patients without interference.”
Høeg v. Newsom, filed in November by the New Civil Liberties Alliance (NCLA) representing five California doctors, also alleges First and Fourteenth Amendment violations.
NCLA’s “case summary” for Høeg argues AB 2098 infringes on the doctors’ rights to free speech and due process of law, and prevents them from providing quality care.
“The law not only interferes with the ability of doctors and their patients to freely communicate but it has already been used as a weapon to intimidate and punish doctors who dissent from mainstream views,” states the summary on NCLA’s website.
‘Severe Chilling Effect’
AB 2098 violates doctors’ constitutional rights, Jenin Younes, lead counsel on the Høeg case, told Health Care News.
“By subjecting doctors to discipline for communications with their patients, the law infringes doctors’ First Amendment rights to free speech,” said Younes. “Moreover, because they may be disciplined for saying anything about COVID that diverges from the ‘scientific consensus’—which term is not defined—this creates a severe chilling effect.”
Based on the way the law is written, physicians can not know whether they are giving advice or treatment that clashes with scientific consensus, says Younes.
“That presents Fourteenth Amendment problems since the due process clause requires laws be clearly defined so people know whether or not they are acting lawfully,” said Younes.
Shifting Consensus
“Scientific consensus” also raises philosophical and medical concerns, says Younes.
“Advances are made when doctors use their experience and knowledge to pursue treatment avenues that may currently not be within the ‘consensus,’” said Younes. “As we’ve seen with COVID, the so-called ‘consensus’ at any given point in time has turned out to be bad practice or untrue—for instance, ventilating those presenting with severe illness, or the concept that the vaccines stopped transmission, which we now know they do not.”
The law is already affecting doctors’ speech, says Laura B. Powell, a local counsel working on Høeg.
“The law already has had real-world effects,” said Powell. “It sends a message to doctors that if they say anything about COVID that has not clearly been sanctioned by government officials, they risk losing their licenses. Doctors are already self-censoring, and that chilling effect on constitutionally protected speech is one of the reasons the law is unconstitutional.”
Informed Consent, Privacy Concerns
AB 2098 violates several principles in health care, including informed consent, says Marilyn Singleton, M.D., J.D., a board-certified anesthesiologist who has practiced in California.
“The speech AB 2098 seeks to regulate is the exact speech engaged in during a patient’s consultation with his or her physician,” said Singleton. “Informed consent means discussing all aspects of a condition with a patient. COVID-19 is no exception to our duty to provide informed consent to treatment.”
Another principle at stake is protected conversation between doctor and patient.
“Any law that tries to dictate a physician’s conversation with his or her patient is destructive to the privacy of the patient-physician relationship,” said Singleton.
“Scientific consensus” is also a problematic concept, says Singleton.
“Scientific consensus is useful in evaluating patients’ symptoms and potential treatments, but it doesn’t apply neatly to every case,” said Singleton.
Singleton says the assumption in the law that doctors should follow advice from the Centers for Disease Control and Prevention (CDC) is flawed.
“Often, the CDC’s newsletters lag behind what clinicians see in their daily practice,” said Singleton. “A physician’s job is to do what is best for his or her patients, not wait for CDC newsletters—which may or may not have correct information,”
‘Test Case for Other States’
While AB 2098 is a state law, it is being challenged in federal court and could have national implications, says Powell.
“AB 2098 is the first law of its kind and represents a test case for other states,” said Powell. “There is an organized national effort to pass laws like this one, which was launched by the Federation of State Medical Boards in July 2021. If AB 2098 is not struck down by the courts, it is much more likely that other states will pass similar laws.”
“Hopefully, the lawsuit will end in favor of the plaintiffs,” said Singleton. “This may discourage other states from enacting similar legislation. On the other hand, it may educate states on the precise language to use to pass constitutional muster.”
Plaintiffs in both cases sought preliminary injunctions against enforcement of AB 2098 while the courts consider the merits of their complaints, but no judicial ruling had been made, as of press time.
Harry Painter (harry@harrypainter.com) writes from Oklahoma.
Internet Information:
Complaint, “Høeg v. Newsom,” U.S. District Court for the Eastern District of California, November 1, 2022: https://nclalegal.org/wp-content/uploads/2022/11/Complaint_Hoeg-v.-Newsom-final-complaint.pdf
Complaint, “McDonald v. Lawson,” U.S. District Court for the Central District of California, October 4, 2022:
https://libertyjusticecenter.org/wp-content/uploads/2022/10/2022-10-04-McDonald-v-Lawson-Complaint.pdf
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