California Misinfo Law Is Dead

Derick Alison
Derick Alison
6 Min Read

With little fanfare, California Governor Gavin Newsom late last week signed into law a bill that repealed its controversial doctor misinformation statute just a year after it was signed.

Critics, including several physician plaintiffs who had sued the state, argued that it went against the constitutionally guaranteed right to free speech, and a judge had granted a restraining order on its implementation.

Hearing that the law was repealed, the New Civil Liberties Alliance, one of the plaintiffs, issued a statement hailing the repeal, saying that the now discarded law, known as AB 2098, “would have restricted doctors’ ability to provide honest information to their patients.”

The original intent of the bill was an effort to give the Medical Board of California specific language that granted them the power to discipline providers who were found to have conveyed misinformation about COVID vaccines and treatments, including statements they might make on social media or in other public forums such as public protests.

But as the bill went through its various stages, it was narrowly tailored to apply only to conversations between a doctor and a patient in a clinical setting, and only when the practitioner made statements that were “contradicted by contemporary scientific consensus contrary to the standard of care.” If such actions could be proven, it would be reclassified as “unprofessional conduct,” and the licensee could be subjected to discipline.

But opponents said the statute was overly broad and that with emerging and ever-mutating viruses like COVID-19, what is considered scientific consensus could change day-to-day. And doctors had the right to express their opinions in a clinical setting.

Besides, many argued that the licensing agency already had the authority to discipline doctors for conveying information that was blatantly false. Indeed, the agency has filed at least one accusation alleging that a doctor made patently false statements to a patient in her care 18 months before the misinformation bill became law.

Still, some said that the legislation could have served as a powerful signal that false or misleading information disseminated by the nation’s trusted medical providers was wrong and wouldn’t be tolerated.

“Now, we’re in a risky period for healthcare in America,” said Nick Sawyer, MD, a Sacramento-area emergency room doctor who started the organization No License for Disinformation.

“More people are saying no to vaccines without medical justification and it’s just going to get worse,” Sawyer said. “As doctors, we dread the thought of treating very sick children — or their parents — who develop vaccine preventable illnesses, and having to say that it all could have been avoided.”

Aside from repealing AB 2098, the new legislation, called SB 815, includes several consumer protections that advocates had long sought. It requires that the board communicate with aggrieved patients who filed a complaint.

Before a complaint about a licensee’s quality of care can be closed, the board will now be required to conduct an interview with the complainant, patient, or the patient’s representative. Before now, a complaining party was not guaranteed to have input during the process.

The new legislation “will give patients a voice in the medical board’s enforcement process that they have been seeking for years,” said Carmen Balber, executive director for Consumer Watchdog. “Right now, 80-plus percent of complaints are closed before the patient is ever spoken to,” she said.

The bill also establishes a new complainant liaison unit consisting of members of the Medical Board of California staff to respond to communications from the public about the complaint review and enforcement process. This provision does not take effect until 6 months following the budget allocating staffing positions for the new tasks.

The board has long complained about the high costs of running the agency and has frequently asked that it be allowed to raise the licensing fees doctors pay every 2 years. This new law gives some remedy, raising the initial license fee from $863 to $1,151. For physicians whose licenses expire after Jan. 1, 2024, the new fee would be raised to $1,151. On Jan. 1, 2027, license fees go to $1,255 for the initial fee and $1,255 for the renewal fee.

Another provision in the legislation Newsom signed includes a new description of unprofessional conduct when a doctor asks a patient not to allow release of their medical records, or tries to dissuade, intimidate, or tamper with a patient, witness, or any person in an effort to prevent them from reporting or testifying about a licensee.

According to a Senate floor analysis of SB 815, “some physicians under investigation have asked their patients to rescind their consent to release their medical records to MBC investigators.” Although the practice has not been tracked, “staff suspect this has happened on numerous occasions,” and that can delay or impede an investigation into a physician’s quality of care.

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    Cheryl Clark has been a medical & science journalist for more than three decades.

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