Let me try to set out where we are today, before the hearing on SB 2098 which bill originally made sanctionable physicians who publically spread covid misinformation.

The original bill

The bill was dropped on February 14th. It created a new form of misconduct that the medical board could prosecute and that being a physician providing information to the public via social media or any other public forum information which the board thought was false or misleading, i.e., contrary to the views of the medical establishment about covid, be it the vaccine or off label treatments, or the seriousness of the disease. Here is the original bill.20210AB2098_99(3)

The bill was sponsored by the California Medical Association and made clear that the purpose of the bill was to target California licensed physicians like Simone Gold who is an outspoken critic of the covid vaccines, the government response to the pandemic, and a proponent of the use of Ivermectin and other off label drugs used by line physicians to treat covid. I don’t find anything in the original materials to suggest the board was targeting a physician’s patient interaction. I think the reason for this is that a physician’s interaction with a patient is already covered by disciplinary statutes.

Many organizations criticized the bill. I gave my two cents, the day after the bill was dropped. Here is that post. https://wp.me/p7pwQD-1eA

Yesterday at around 8:00 AM, I published a post explaining the origins and context of the bill, that it came from the Federation of State Medical Board, and gave a link to a map and summary of other states that had legislation pending dealing with the Federation’s policy or state medical board policy about using off label treatments for covid. I thought it was important for people to understand the context, and also to reiterate my view that the bill was unconstitutional Here is that post. https://wp.me/p7pwQD-1gw.

Later that day I received some questions about whether my post had taken into consideration a legislative analysis that suggested some modifications to the bill, and outlined the positions of the organizations for and against the version of the bill. I am not sure when the legislative analysis was published. It could have been after I published my post yesterday, or it could have come out over the weekend. In any event, I didn’t see it. Here is the legislative analysis with some possible amended language. 202120220AB2098_Assembly Business And Professions

Here are some quick thoughts and expressions of skepticism.

1. Supposedly, the bill’s sponsor(s) have already agreed to the suggestions. Maybe so, but as of before the hearing, the live bill is the original bill. We will see later this morning whether the sponsor(s) formally suggest the modifications to the bill.

2. The suggested amendment makes the bill no longer a Federation of State Medical Board bill about the public dissemination of covid misinformation board sanctionable. Rather, it is a proposal that would restrict the information that a physician can provide to a patient about matters relating to covid. That’s a big difference

This switch is effectuated by a proposed change via the addition of a definition of “disseminate” which “means the communication of information from the licensee to a patient under the licensee’s care in the form of treatment or advice.” (page 12).

3. How do I feel about that? I don’t think the amendment or whatever you want to call it changes much practically speaking. In the vaccine world, physicians rarely just advise. They do stuff like prescribe Ivermectin off-label, or try to write medical exemptions. People who are skeptical about the covid vaccine or want to take Ivermectin instead of conventional therapy don’t need affirmation of their beliefs from physicians. They want the physician to treat, prescribe or excuse. Those actions by a physician are already subject to board jurisdiction via other well-established provisions (Bus. and Prof. Code Section 2234 dealing with negligence and incompetence). So, in this particular respect, I don’t think that the suggested amendment changes much other than adding another statutory charge to a standard of care violation.

4. Remember that the only thing keeping this bill from making it a standard Federation bill making physician pure speech sanctionable is the proposed definition of “disseminate.” If that were to go away or be eviscerated in a subsequent amendment, we’d be at square one.

And that would be my concern and fear, because right now, based on the proposed/suggested change, the bill no longer solves the problem the bill was meant to solve; stop high profile California licensed physicians like Simone Gold from going on social media and doing press conferences knocking covid vaccines and advocating for off label treatments. So, I simply do not believe that this proposed change would be in the final version of the bill.

My Suggestion
There is something else going on in the proposed amendment which can be built on. The proposal state that “(b) prior to bringing disciplinary action against a licensee under this section, the board shall consider both whether the licensee departed from the applicable standard of care and whether the misinformation or disinformation resulted in harm to the patient.” (page 13).

The consideration of the standard of care is meaningless, at least as far as those who hold minority beliefs are concerned. Prescribing Ivermectim for covid is not within the standard of care which is going to be defined by what conventional doctors say it is, and that view will be accepted by the administrative law judges.

But this harm thing is more interesting. Medical boards do not have to allege or prove harm to sanction a physician. The medical boards protect the public rather than compensate for wrongdoing like in a civil malpractice case. Boards don’t have to wait for someone to be injured to take a negligent doctor out. So the introduction of harm into a medical board’s decision to charge a physician is intriguing. But, it’s not enough. It is a meaningless throwaway as written.

Here is what I propose:

“The board shall not bring a disciplinary action against a physician for violating this section unless it has an expert opinion establishing that the physician’s alleged conduct caused actual, documented physical injury to the patient. The loss of opportunity to take a convention treatment does not constitute physical injury. Further, there must be a clear scientifically established causal relationship between the physician’s conduct and the physical injury. The injury cannot be of the type which is a known side effect or consequence of covid. A copy of such an expert’s report must be provided to the licensee with the service of the accusation. The Government code shall be amended to provide the availability of a summary determination and summary disposition by the administrative law judge of this physical injury requirement. If the Board fails to establish that the physical injury was caused by the physician’s conduct, the Board shall pay the licensee’s reasonable attorneys and expert fees.”

I think this proposed language would provide more protection to California physicians than they currently have, and in my view, they have no protection right now. This is a far cry from the Federation’s policy proposal, but I think there would be some tactical benefits for the community to get behind this or something like this. I think it would make the job of board lawyers much easier. In fact, I think it would eliminate these kinds of complaints from turning into medical board cases.

There are other parts of the bill that deserve attention, but since the hearing is set to begin soon, that’s all for now.

Hope this clarifies things and provides a way forward to either kill it or turn it into something that actually protects physicians who hold minority beliefs.

Rick Jaffe, Esq.