The Dec. 10 edition of The Signal included an editorial, “COVID and the Freedom to Dissent.” Unfortunately, the editorial missed the point by conflating freedom of speech with adherence to medical professional standards.
The editorial argues that Assembly Bill 2098, a bill signed into law by Gov. Gavin Newsom, is an unconstitutional infringement on the First Amendment rights of physicians. AB 2098 designates the dissemination of “misinformation or disinformation” about COVID-19 as unprofessional conduct by physicians. Under existing law, the medical licensing board must take action against physicians who engage in unprofessional conduct. AB 2098 is redundant because it does not change existing law; it merely calls attention to a public concern about potentially dubious COVID-related medical advice.
If a doctor engages in unprofessional conduct, the medical board will look at all the relevant facts and circumstances in deciding whether the physician actually engaged in activities failing to meet professional standards.
The editorial analogizes the physicians’ situation to that of Copernicus and Galileo who were attempting to advance scientific theories that contradicted church doctrine. AB 2098 is distinguishable from that of the Renaissance scientists because they were not practicing medicine, but rather were engaged in intellectual discussions. Unlike contemporary physicians, they were not subject to medical and ethical responsibilities to patients.
A doctor is free to express his/her opinion under the First Amendment. But when that doctor fails to adhere to professional standards, the medical licensing board can open an investigation and discipline the physician if it meets a burden of proof with clear and convincing evidence to a reasonable degree of certainty that a violation of the Medical Practice Act occurred.
When professionally sanctioning a physician, freedom of speech does not apply if the doctor provides frivolous advice. (Similar rules apply to CPAs and other licensed professionals.) The medical licensing board will define what constitutes “misinformation and disinformation” and will consider all of the underlying facts.
Eight of 15 medical licensing board members are physicians. In recent years, the board has been subject to increasing criticism that it does more to shield physicians than to protect consumers.
One of my relatives who has underlying medical conditions was recently told by her primary care physician, “COVID is a hoax, so don’t waste your time getting a vaccination.” The physician did not consider that the patient had a compromised immune system. That physician is clearly entitled to a First Amendment right allowing him to express his opinion, but a different standard applies when treating a patient. The physician is required to consider all credible sources of medical information, reach a well-reasoned conclusion, and provide medical advice that considers the patient’s safety while not placing the public’s health at risk.
Clearly, the issues surrounding dispensing COVID-related medical advice to patients are governed by medical professional standards rather than by the First Amendment.
Jim de Bree