California tried to tell doctors what would be classified as misinformation – it didn’t go well

Free speech? Or dangerous misinformation? This is the question and the quandary that faces governments and legislators around most jurisdictions in North America where the perplexing rise of physician-driven commentary and, by extension, patient counselling on COVID-19 has become a concern.

Forget the fundamental tenet of ‘first, do no harm’, which really is not explicitly stated in the Hippocratic Oath anyway. Instead, let’s focus on the basics and the facts. According to a timeline and analysis of the situation, ‘in August 2022, the California legislature approved a bill that would allow regulators to punish doctors for spreading false information about COVID-19 vaccinations and treatments. The law would designate spreading false or misleading medical information to patients as “unprofessional conduct”, subject to punishment by the Medical Board of California, the agency that licenses doctors. That could include suspending or revoking a doctor’s licence to practice medicine in the state.’ In October, the bill was signed by Governor Gavin Newsom and was set to take effect on 1 January 2023. But even before the bill could take effect, lawsuits were launched and, to no one’s surprise, a judge ruled in late January that the bill was too vague and it was ultimately blocked from taking effect.

But there’s an obvious catch. Who decides what constitutes false information? Or perhaps more importantly, can anyone ever truly determine what is ‘true’ and what is ‘false’? In the fast-moving world of science, where there is rarely universal consensus on disease management and treatment, where inter-patient disease heterogeneity is a given and where the art or ‘gestalt’ of patient care is a moving target, how do you suspend or revoke someone’s licence based on unknowns and ‘what ifs’?

Free speech absolutists and civil libertarians have turned this into, well, a First Amendment issue and invoked the right to free speech. And they are right. Sort of.

We all know medical misinformation about COVID-19 when we see it. It is the stuff of fairy tales and unicorns. People telling you that injecting bleach into your body might work. Or that the vaccines are the government’s method for secretly implanting microchips into your body. Or that taking ivermectin, a parasitic agent used in veterinary medicine, or hydroxychloroquine may help reduce being hospitalised for COVID-19.

But it is difficult to tell physicians not to counsel patients about cases of pericarditis and myocarditis, because in certain patient subgroups there is an elevated risk of both occurring. How do we legislate physicians from informing parents about the prevalence and outcomes associated with COVID-19 infection in young children, which can be fairly innocuous? How do you suggest a physician counsels a patient who asks about taking a monovalent vaccine manufactured for the original native strain of SARS-CoV-2 compared with a novel bivalent vaccine manufactured for the BA.4/BA.5 Omicron subvariants?

The trick is in preventing the unicorn and fairy tale scenarios while ‘allowing’ the nuanced and important discussions about cardiac adverse events, paediatric infection rates and outcomes, and vaccine selection to take place in the course of legitimate patient-physician interactions.

The unfortunate reality is that we can’t have one without the other.

And while I understand and agree with the intent of this California bill and abhor the physicians who strike fear into their patients with unfounded and dangerous information, this idea was stillborn from the outset. It never had a chance of getting past a judge or First Amendment protectionists.

The civil libertarians will undoubtedly win each and every case that infringes on First Amendment rights involving physicians. And they will be smug about it. They will tell you that there is already a mechanism in place for physicians who knowingly spread misinformation: malpractice lawsuits. They are, of course, wrong. The idea that patients can just simply call up a toll-free number and get a lawyer to listen to and take their case against a solo healthcare practitioner who spreads misinformation is a laughable suggestion in this day and age of ‘he said, she said’ culture wars. And don’t let anyone tell you otherwise.

It is disappointingly unsatisfying that the end result of three years of physician-initiated medical misinformation about COVID-19 is to ‘just accept it’ because some of the information is legitimate and so we must accept the good with the bad.

The first undeniable policy and public health learning from COVID-19 is that medicine has no absolutes. And the second undeniable policy and public health lesson is that people will always take advantage of lesson number one.