Law aimed at doctors who spread COVID-19 misinformation is put on hold by judge

A federal judge in California has temporarily blocked enforcement of AB 2098, a week-old state law designed to stop the spread of lies and misinformation related to COVID-19.

Judge William Shubb of the US District Court for the Eastern District of California on Wednesday issued the injunction in two related cases challenging the constitutionality of the law.

In December, Judge Fred W. Slaughter of the US District Court for the California Central District denied a similar request in a separate lawsuit challenging the bill.

Also on Wednesday, the 9th Circuit agreed to hear the appeal for that case along with a fourth, similar lawsuit filed in the Southern District of California.

“We all agree that when doctors intentionally spread COVID misinformation, it’s a problem,” said Hannah Kieschnick, an attorney with the ACLU of Northern California who filed amicus briefs in all four lawsuits. “We want the government to be able to protect the public from unsafe treatments and unsafe doctors.”

But AB 2098, she said, “is unconstitutional, unnecessary and risks quite serious unintended consequences.”

Rep. Evan Low (D-Campbell) introduced AB 2098 in February to give the Medical Board of California the ability to discipline physicians who spread false information about COVID-19 for unprofessional conduct.

As originally drafted, the bill specified the types of actions that could result in disciplinary action under the new law. For example, the panel would need to consider whether the misinformation in question “has been refuted by the current scientific consensus to an extent that its dissemination is grossly reckless” and whether the doctor’s actions resulted in his patient “exposing the possibilities of COVID-19 prevention decreased”. or treatment not justified by the person’s medical history or condition.”

When it reached Gov. Gavin Newsom’s desk in September after several rounds of amendments, the bill’s language was much vaguer.

In his signing statement, Newsom acknowledged that he was “concerned about the deterrent effect” of the legislation on doctor-patient consultations.

But this law, he wrote, “is narrowly tailored to apply only to those egregious instances where a licensee acts in bad faith or clearly deviates from the required standard of care while interacting directly with a patient in his care.”

The final version of the law does not identify any of these egregious cases or how the Board would define malicious intent. Shubb ruled that the law’s “unclear wording and structure” could have a “deterrent effect.”

“As it stands, physicians reading the law have no assurance that the law will be interpreted by courts or applied by chambers consistent with the interpretation proposed by the defendants,” the judge wrote.

Some sections of the law are written in such a way that clear interpretation is almost impossible. The final text defines misinformation as “misinformation that contradicts the current scientific consensus, that contradicts the standard of care”.

“Put simply, this provision is grammatically incoherent,” Shubb wrote. “It is impossible to analyze the sentence and understand the relationship between the two clauses.”

dr California Medical Assn. President Donaldo M. Hernandez said he was “disappointed” with the ruling.

“There has been a lot of misguided rhetoric about what this law does,” Hernandez said in a statement. “AB 2098 only applies when a physician intentionally misleads or deviates from the appropriate standard of care with a patient under their care. It does not stifle legitimate, necessary, and appropriate scientific and medical debate. We must not allow the toxicity of the moment to blind us to the moral and ethical obligations physicians have to our patients.”

Opponents of the law say its wording does not adequately protect legitimate medical care.

“The problem with AB 2098 is that it is so broad that it will spoil the language of well-meaning physicians who even provide accurate, appropriately tailored care,” Kieschnick said. “The legislature has gone too far. And they didn’t have to.”

State law already prohibits doctors from lying to their patients or giving substandard medical advice that doesn’t meet basic standards of quality care. This applies to all diseases, including COVID-19.

AB 2098 applies only to discussions between patients and their physicians about the patient’s care. It does not apply to statements that a person with a medical degree might make in public, such as B. in social media posts, rallies or talk show appearances.

Legislative analysis of the bill prior to its passage found that any attempt to restrict physicians’ public statements was unlikely to survive a First Amendment challenge in court.

Plaintiffs in the various lawsuits against AB 2098 include Children’s Health Defense, a nonprofit peddler of inaccurate health information founded by vaccine skeptic Robert F. Kennedy Jr., and a Newport Beach physician who has discredited the use of the COVID-19 treatments promoted ivermectin and hydroxychloroquine.

Not all opponents of the bill welcome misinformation. They just don’t accept this particular law.

“If someone is saying that the COVID vaccines are microchipped, that the COVID vaccines have the devil’s mark on them, that’s clearly an issue that we need to address,” said Dr. Eric Widera, a professor of medicine at UC San Francisco specializing in geriatrics. “I am very much in favor of addressing misinformation. I just don’t think this bill will do it.”