My Analysis and Opposition to AB 2098 to the Assembly Appropriations Committee

My Analysis and Opposition to AB 2098 to the Assembly Appropriations Committee

For what it’s worth: Here is my letter to the appropriations committee which will be hearing AB 2098, which the bill which tries to sanction California physicians from promoting so-called “covid misinformation.” It seems like a big mess and a waste of time now.

“April 29, 2022

To: California Assembly Committee on Appropriations

Re: AB 2098, Opposition and Proposed Amendment

Dear Committee Members:

I am a healthcare attorney with substantial experience in medical board work in California and throughout the country.

Summary of Key Fiscal Points

• As currently drafted, AB 2098 would needlessly waste taxpayer funds by requiring the Medical Board of California to handle potentially thousands (or more) of complaints regarding physician newsletters and similar communications unrelated to patient care.

• The bill analysis claims the focus is on patient care, so the following simple amendment (in bold) would ensure fiscal responsibility moving forward, consistent with that focus:

“(5) “Disseminate” means the conveyance of information from the licensee to a patient under the licensee’s care in the form of treatment or advice, presented in a physician/patient visit, to which physician/patient confidentiality rules apply.

Without this amendment, one need only multiply the number of doctor newsletters discussing Covid-19 by the number of patients with differing views, and the resulting number of potential complaints to the Medical Board could be in the thousands or higher in any given year. It would be fiscally irresponsible for California law to weaponize speech as the Medical Board lacks the resources to manage even a fraction of that kind of complaint volume. Moreover, complainants could game the system under AB 2098 by submitting voluminous complaints without repercussions. My proposed amendment solves the fiscal problem.

Details

I am writing to give my analysis and express my opposition to the current amended version of AB 2098. I will also suggest some further amendments which I think would solve the continuing problems with the bill. So that we are all on the same page, let me start with the original version of the bill and then move on to the current amended version, then discuss two proposed amendments I have and end with why I still oppose the bill, even with my proposed amendments.

The Original Version of AB 2098

When introduced, the stated purpose of the bill was to give the medical board the power to sanction California licensed physicians who publicly propagate covid misinformation. The Legislative background mentioned a California licensee, Dr. Simone Gold who publicly speaks out about covid, off-label treatments, and the vaccination, as the example of a physician who could be sanctioned by the original version of AB 2098. I believe there was a great deal of pushback against the original version, primarily focused on the asserted First Amendment unconstitutionality of disciplinary physicians for expressing their opinions in public.

The Amended Bill

Shortly before the hearing before the first Assembly hearing on the bill, a new legislative analysis was published, which suggested changes to the bill. At the hearing, the sponsor indicated acceptance of the proposed changes. The amended bill is now the live bill.

The main difference made by the amendment is that the bill is now limited to a physician’s interactions with patients in the form of “treatment or advice”, and no longer reaches a physician’s speech to the general public, (with the caveat discussed below).

The change in focus or scope of the bill has been effectuated by 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.” The amended bill now limits the scope of Board action to information that is disseminated to patients as treatment or advice.

This amendment mostly solves the First Amendment problem in the original bill, but not quite. Many physicians publish newsletters, and some do blog posts for their patients and the public. Thus, there is still a possible First Amendment problem. I think the amended bill is unclear as to whether the Board can investigate and prosecute a physician who provides information via a newsletter or any social media where some of the viewers are patients.

My Proposed Amendments

I think this needs to be clarified with an additional small amendment. The obvious clarification would be to add to the end of the definition of disseminate, “presented in a physician/patient visit, to which physician/ patient confidentiality rules apply.” With this proposed amendment, AB 2098’s First Amendment problem is solved.

The next issue which I think needs to be addressed the vagueness and lack of guidance to the Board in terms of the requirements which would allow Board prosecution. Here would be my suggested amendment:

“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 conventional 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-19. 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.”

This proposed amendment clarifies the overly vague provision in the current amended version which suggests that the Board can take into consideration harm or lack of harm. I would submit that my proposed clarification will save the Board a great deal of time and expense incurred by board investigators and the Attorney General’s Office by having a bright line of what is required for the Board to pursue a physician for providing covid misinformation to patients. It will also greatly reduce administrative litigation expenses for both sides because the threshold issue of actual harm from the covid misinformation can be litigated without the necessity of a full administrative hearing. Bright lines and clearly set out requirements will allow the Board to focus on complaints which show harm, which will allow the Board to marshal its limited man power and financial resources to covid misinformation cases which most require Board attention and action.

My Opposition to the Amended (and Proposed Amended) Bill

These two proposed amendments will solve the remaining First Amendment problem, as well as provide clear guidance to the Board as to circumstances, requirements and procedure by which it can bring a covid misinformation case against a licensee, However, I still oppose the bill even with these proposed amendments.

As a health care lawyer, my problem is that there is still too much scientific and public health uncertainly due to the evolving nature of the virus, and especially the differing responses and successes and failures manifest in different parts of the world. I do not think it is a good use of the Board’s resources to be chasing down what its administrative staff might think at any given time to be “covid misinformation.”
Some of the early-on public health decisions based on what was thought to be the best available data (or really just educated guesses) were wrong and harmful, like the overuse of ventilators.

Moderna is now seeking FDA approval of its vaccine for children under 6 even though its clinical trials efficacy rate is 37%, which is a number many consider to be sub-par. If the vaccine receives such approval, will it be covid misinformation to advise parents against that vaccine because of the low efficacy rate?

Some countries have taken quite different approaches to lock-downs and vaccination. Sweden did not recommend the vaccine for small children, and has not appeared to suffer any negative consequences. Denmark, which is widely acknowledged to have had the world’s most successful public health response to the pandemic, has just announced that for the summer it is ending its vaccination program. Is it going to be prosecutable covid misinformation for California physicians to consider the pandemic policies of countries who objectively have had a more successful approach to the pandemic that what we have seen in the United States?

What I see resulting from this bill, even as amended, are Board investigators and Deputy Attorney Generals chasing down doctors, and trying to hold them to vague standards which are changing as the virus and the response change, and new data emerge, is assimilated and translated into changes in public policy.

To this health care lawyer, trying to use this complicated and evolving world-wide public health endeavor as a basis of a physician disciplinary statute seems like costly and unnecessary chaos, rather than sound public policy legislation.

For these reasons, I oppose AB 2098 as amended.”

Hope it helps.

Rick Jaffe, Esq.

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