Yesterday, February 14th, AB 2098 was dropped by Assembly Member Law and two others Assembly folk, and co-authored by, you guessed it, Senator Richard Pan.

The bill makes physicians who publicly speak about COVID subject to professional discipline for providing misinformation. The bill has some (4 for now) requirements for a finding of misconduct.

The first is whether the licensee “deviated from the standard of care.” I have done a little medical board work, but I don’t know what it means for a physician to deviate from the standard of care in a public speech about a medical topic. I didn’t know there was a standard of care for a physician expressing his/her opinion in public.

I am of course aware of the recent declaration by the self-declared Federation of Medical Board to make that so, but it seems odd to me to talk about a standard of care violation for making a speech. Maybe as a lawyer, it’s the thing I have about the First Amendment and the extremely limited circumstances in which a government agency can impose content-based sanctions or restrictions on public speech. I guess they’re trying to expand the no yelling “fire” in a movie theater unless there really is a fire, in which case the yeller is a hero. And therein lies the problem with attempting to apply that exception to free speech. What if there is disagreement about whether there is a fire or how dangerous it is. Well, that suggests that the analogy or the exception is not that helpful analytically or might not apply.

There are a few other requirements in the bill. The most interesting is proof that the disinformation was used by an individual “opportunities for COVID -19 prevention or treatment that was not justified by the individual’s medical history or condition.”

I am not sure what this means. Is it limited to the specific physician’s patients? It doesn’t seem like it is.

So, could someone listen to a physician telling an audience that the vaccine is associated with x, y, and z side effects in this many people? The listener then decides not to get the vaccine or the booster, then gets covid, and lives (or dies), and then he or a family member or some other person who knows the situation files a complaint, or is a witness against the doctor on this issue?

Is that what it means? If so, that’s nuts.

There are two other requirements that are just throwaways, in the sense that they will always be found to be the case.

One is “whether the licensee intended to mislead or acted with malicious intent.” People are usually found to intend the consequences of their speech. So if a physician expresses his opinion that, say for a healthy young male, the risks of the vaccine outweigh the benefit, then clearly since the establishment things that is misinformation, how could it not conclude that the intent was to mislead?

The other is “whether the misinformation or disinformation was contradicted by contemporary scientific consensus to an extent where its dissemination constitutes gross negligence by the licensee.”

This is really not a separate or independent element. Questioning the safety and efficacy of the vaccine or advocating the off-label use of drugs for the treatment of covid is clearly a very, very bad thing in the eyes of the “contemporary scientific consensus.”

Give me a break! This bill is a joke, or would be if it were not so dangerous.
Here is it.

20210AB2098_99

If it hasn’t done so already, the community should get some Republicans to drop an anti-AB 2098 bill to protect doctors from board disciplinary cases for speaking their minds about COVID, vaccines, and off-label treatments.

It’s not complicated. It’s the First Amendment.

I’ll be talking about this topic in the future quite a bit, I predict.

Stay Tuned!

Rick Jaffe, Esq.