California’s AB2098 and Misinformation — by Noah Louis-Ferdinand
Highlighting an exceptional thread from Noah Louis-Ferdinand on Twitter with permission. Noah writes for the organization Voices for Vaccines, and does an exceptional job of public facing science communication, debunking misinformation and providing medically accurate information. You shouldfollow him on Twitter at @Michigan_Noah.
In the past week, two high-profile doctors Zubin Damania, (@ZDogg on Twitter) and Dr. Leana Wen (@DrLeanaWen on Twitter) have come out hard against California’s efforts to regulate misinformation. As someone who fights misinformation at my job, I wanted to write a response. I’ll go over the policy basics if you’re unfamiliar.
Up front, I’m no expert on this bill or law as a field. But neither doctor actually cites any legal analysis. So I’ll be relying on the Senate analyses and testimony + arguments from Nicolas Sawyer, MD, MBA (@NickSawyerMD on Twitter) of No License For Disinformation (@NLFD_org on Twitter) who is a California EM physician and strong supporter of the bill.
The bill we’re talking about is California’s AB2098. People say this bill “extends” the state medical board’s disciplinary powers to COVID misinformation. That’s not exactly true, since they already have the power to discipline physicians who misinform. But the idea is to make more explicit.
I’ll clarify how in response to criticisms.
First: ZDogg. His video goes over most of Wen’s arguments, so we’ll start there. A point he makes up front is that this bill would be a major hassle for physicians, and a source of worry. This really isn’t accurate.
Currently, the state medical board is not empowered to pursue COVID complaints. Prior to COVID, 80% of complaints were dismissed out of hand and only 3% resulted in any disciplinary action. The board hasn’t even taken action against Simone Gold, a clear disinformer whose organization made a video depicting the President of the California Medical Board Kristina Lawson (@kdlaw on Twitter) as a Nazi, and stalked her family:
Simone Gold also runs a site where you can have telehealth appointments with doctors who will prescribe you ivermectin instead of recommending COVID vaccination.
Nick Sawyer and and Taylor Nichols met with the board to ask why they haven’t acted despite prior law allowing it. The board asked for Congressional ‘permission’ to do so, and the two are backing the bill as a means to help them prioritize such severe cases.
Given that all it really does is clarify pre-existing powers that have seen little use, it’s a big stretch to say we’ll go from 0 disciplinary action to unfair discipline of normal doctors. ZDogg disagrees. He says this bill is a “slippery slope, potentially to ruin.”
But this misrepresents the policy landscape. There is actually IMMENSE pressure to discipline severe misinformers, since as Taylor Nichols notes 80% of people support action. And there’s been a substantial increase in reports filed (all discussed here in the Lawfare Podcast episode that Nick and Taylor recorded with Evelyn Douek and Quinta Jurecic)
STILL: only 1 in 5 state boards have disciplined EVEN A SINGLE PHYSICIAN for COVID misinformation. And to the contrary, the majority of states have one or more bills on the books that either protect COVID misinformers from disciplinary action or enable their quack treatments.
These laws were up in 10+ states less than two months after the vaccine roll-out had started (boards disciplined a grand total of 8 PEOPLE in January 2021):
In other words, we were already slipping down the wrong slope.
Another point ZDogg makes is that consensus evolves. This is true, but examples one can jump to don’t result in misapplication of the bill. His first is masks: “Fauci said don’t wear a mask.”
The issue is that this was a public health debate that lasted a few, early months. Advice to wear a mask or not didn’t come from your doctor (who most people stopped seeing). It came from media, local government, professional organizations, etc. Generally speaking this kind of public health advice is far from the clinic, and AB2098 only deals with professional care.
But even then, if you actually look at the board’s evaluation process, the consultant is supposed to conduct a literature review. If there’s no or weak literature on what is right (e.g. masking early on), a doctor who airs on caution by advising masking would be difficult if not impossible to punish. The disciplinary process is long-winded and involves multiple steps for review by medical professionals before the doctor involved even has to defend themself (and why most cases are dismissed). The process takes a median 3.27 years from complaint to action, whereas mask advice changed in the span of a few months. Such an unfeasible, uncertain case would probably be dismissed. ZDogg gives another example of saying that he wouldn’t advise masking a two year old.
Would he lose his license for that?
No.
Currently, the World Health Organization advises not masking until the age of 6. The board would have an extremely difficult time pursuing discipline with arguments from credible institutions as such. Esp. because as it stands: legal protections in the US surrounding speech are already very strong.
@MichelleM_Mello, Stanford Law Professor who is cited in NY Times about the bill, states: “Initiatives like this will be challenged in court and will be hard to sustain.” So giving boards a tiny bit more power will not encourage them to start picking battles they won’t win.
That’s in part because they can fully expect that when a doctor is disciplined for this, there will be a lawsuit. We know they’re hesitant because as Seema Yasmin (@DoctorYasmin on Twitter) notes: not a single state has codified the national board’s recommendation to punish COVID misinformation.
ZDogg gives another example of saying, if he tells his patient they shouldn’t close schools, will he lose his license? Almost certainly not. For one: doctors usually advocate for this kind of thing on local boards (that’s free speech, not professional care, and is unaffected).
But as @NickSawyerMD argues, medical consensus is a well-understood concept referring to reproducible evidence. In the case of closing schools, ‘evidence’ relies on interdisciplinary analysis that would make it hard to define ‘standard of care’ in actionable terms.
ZDogg then argues that this bill would stop physicians from “thinking in a nuanced, holistic, health 3.0” kind of way. I see no indication that this is the case. The bill’s having an unclear definition of misinformation actually makes it far weaker than it could be.
As all prior examples seem unlikely to be affected, you would really need a clear example of where a doctor should have known better but hurt a patient (misinformation) or is actively profiting off of fake cures (disinformation). The bill uses Simone Gold as an example for that reason.
ZDogg, however, uses mainstream doctors. He says that Paul Offit who does not think 18 year olds need a booster might lose his license. Given that few boards across the US have acted against severe cases of misinformation despite a national recommendation from the Federation of State Medical Boards to punish them NINE MONTHS AGO this is a mischaracterization of their power and intent.
@NickSawyerMD has stated that there are multiple paths to empower state boards, and that this bill is a fairly weak route to do so (even doubting its impact).
ZDogg nonetheless argues that this could lead to political attacks on doctors. Liberal patients going after conservative doctors. Conservative doctors not taking liberal patients, etc. We can be fairly certain this isn’t true because per-existing law would already allow misguided attacks on doctors. ZDogg himself says anti-vaxxers have filed complaints against him that he had to formally respond to. If people were interested in trying to abuse this, they would have done so. But it’s effortful and ineffective so they probably won’t.
In fact, @NLFD_org was founded as a nonprofit last year in order to try and get disinformation doctors de-licensed. They have a tool to make it easy to report someone. Yet from my interactions with them, it seems it’s still a task to get people to do it, even for the worst offenders.
Republicans are also already coercing boards in their states, eg in Tennessee where they threatened to disband their board for punishing severe disinformers, so clearly you don’t need new policies to abuse this system. Finally, ZDogg says the real solution to misinformation is open iscourse between people who disagree. This is not actionable. California declared misinformation a health emergency months ago and on the national level it has killed a 5–6 digit # of people. It’s not fair to their citizens to rely on “less polarization” to stop the damage.
Moreover, other countries have laws against misinfo. It’s the US that has one of the highest death rates and almost no regulation. Quoting Prof. Michelle Mello again: “the U.S. government and states have been limited to fighting misinformation with scientific data.”
She continues in an editorial: “If 5 fully loaded 747s crashed each week due to wrong information, regulators would be apoplectic…[Yet] courts have suggested policies that public health experts would find laughable.”
Additionally, COVID misinformation costs us $50–300MM a day.
It seem strange then to oppose fairly modest empowerment of medical boards as a kind of “madness” especially when ZDogg and other opponents of the bill point to other countries to disagree with US policy (eg on kid’s vaccines).
That said, now a few arguments from Dr. Wen.
Dr. Wen argues that California’s bill might lead to worse patient care by not giving physicians full autonomy. She gives some examples. The first is that she might recommend a young person wait on their booster until around the holidays rather than right now.
Another is how steroids don’t work for COVID in general but some patients may benefit. A third is not boosting a kid with two shots + prior infection. “Is it really right for physicians to be threatened…for offering nuanced guidance on a complex issue that is hardly settled?”
None of these cases would be prosecutable misinformation to my understanding. I don’t think we have data for the benefit of a booster after two shots + infection. And because standard of care has legal leeway in proportion to risk, waiting a bit seems within bounds of reason.
Wen’s article links to a study for specific populations that may benefit from steroids, so it’s almost certain a board wouldn’t pursue that. But more to the point: boards have directly stated they don’t want to go after gray areas. AB2098 empowers professional self-regulation.
National board president Humayun Chaudhry says: “Each case is different, and each board handles complaints differently, depending on the size of their staff and state laws…We recognize that there are gray areas in medicine.” Specialty boards communicate with states often.
President of the board of Emed Marianna Gausche-Hill says: “Like the other specialty boards, the ABEM communicates with state medical boards almost daily.” “ABEM recognizes that there are numerous medical issues on which physicians will have legitimate differences of opinions.”
And as the president of The American Board of Internal Medicine has written, the goal of the regulation of misinformation is not to police active debate, but instead to discipline obvious misinformers. “There aren’t always right answers, but some answers are clearly wrong.”
What no one disagrees on are the kinds of examples @tnicholsmd and @NickSawyerMD give. Anti-vaccine governors who bring on quack doctors to promote mass misinformation. People who walk into their hospital, believing COVID is a hoax and refusing care. They have seen this stuff often.
We can rely on niche examples or we can look at the common harms boards can’t even prosecute.
@NickSawyerMD: “This isn’t a call for a policing of free speech [but for] protecting the public against misinformation, which patients are parroting back to us in our ER every day.”
But Wen broadens the scope of the bill by comparing it to Trump’s global gag order on abortion, which literally prohibited US-funded actors abroad to even inform patients about it. This is fundamentally incomparable for a number of reasons:
The first is that this gag order had decades of precedent among Republican leaders. Trump emboldened per-existing law and made it directly applicable to countless providers. We’re starting from a place where Simone Gold can bully the board and even she faces no punishment.
That law also actively prohibited good medical information from reaching patients. The Lancet says 8% of all maternal deaths are due to unsafe abortions, meaning a global gag would block care and harm countless women. This bill limits misinformation that killed countless Americans.
Thirdly: that bill literally stopped people from talking about a specific subject and had nothing to do with medical consensus. It was moral opposition to abortion, not rooted in science. AB 2098 and its authors are longtime vaccine advocates with a proven public health record.
Wen and Damania are less aware of vaccine legislation. They both explicitly argue: “What if antivaxxers start making policies?” The reality is that they are already trying around the country, pushing policies that infringe on our ability to inform parents about routine vaccines.
In sum, I find the criticisms levied by Drs. Damania and Wen to be unrealistic. If they wanted to cite analysis from legal scholars about how this bill might play out, they’d have a more robust case. But the supporters of AB 2098 have provided a much more robust defense.
Original thread here: https://twitter.com/Michigan_Noah/status/1571529722105937921
