If you are following AB 2098 (the California Assembly’s bill geared at stopping the spread of COVID-19 “misinformation” by physicians), as expected, the bill was approved by the Appropriations Committee. That committee basically deals with the financial impact of bills. On a public health-during the pandemic matter, the financial impact is not much of a factor, not at least on a bill like this which is only targeted against a very, very small number of people, i.e., physicians. Though indirectly, the impact will be greater, in terms of what physicians will be able to tell patients about vaccines and Covid treatments.

As I understand it, lobbyists both for and against the bill are working feverously behind the scenes trying to pass, change or kill the bill. On my end, I have written letters to the Health and Appropriations committees explaining in detail why I think the bill is a bad idea and suggesting some changes if they really want to pass something.

I was asked to provide a “one-pager” to be used by lobbyists as talking points summarizing the problems and suggested changes. In case anyone is friendly with a California legislator and wants to either send my letter to a legislator or send their own letter, here is the text of my one-pager, followed by a pdf. Feel free to borrow from or just plagiarize the letter and make it your own. No pride of authorship here. The message has to be widely disseminated to the legislators from as many directions and sources as possible.

“To: California Legislators May 20, 2022
Re: Healthcare Lawyer’s Opposition to AB 2098

Dear Legislators:

I am a healthcare lawyer with substantial experience in medical board work in California and throughout the country. The original bill was clearly facially unconstitutional; it purported to discipline physicians for publicly expressing their personal opinions about important and evolving public health issues. Legislative analysis recognized this problem and AB 2098 was amended to attempt to limit its reach to physicians’ communications with their patients. However, this fix was incomplete because it did not protect physicians’ communications with their patients en mass via newsletters, blogs and list serve emails. Such communications are frequently shared by the patients with their families and friends. These circumstances make the amended bill unconstitutional.

A simple fix to this problem would be further amending “disseminate” to add the bolded language: “(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.” FYI, there is no First Amendment right protecting a physician for rendering negligent medical treatment or advice in a physician/patient medical encounter.

Another problem with the amended bill is its vagueness and lack of any kind of guidance or prerequisites for disciplinary action. Greater clarity would assist the Board and licensees to understand the reach of the law. The bill should make clear that, “A physician and surgeon shall not be subject to discipline under this Section if the speech does not cause bodily injury to the patient.”

But even with these proposed amendments, the bill is still a bad idea for two primary reasons. First, Covid-19 is a highly charged and politicized issue with passionate activists on both sides. I can envision the Board being inundated with complaints against physicians on both sides of the issue. Second, I think Board investigators, staff and Board retained physician consultants will be inundated with complaints, as they try to apply vague standards to statements by physicians during a time in which data, information, practices and opinions evolve.

AB 2098 will increase the cost, chaos, and uncertainty of the Board’s dealing with the pandemic. It will also negatively impact the physician/patient relationship because patients rely on their physicians to speak the truth as they see it.

Very truly yours,

Richard Jaffe”

Here is a pdf of the letter. onepagerfinal

So what does it mean if the bill passes?

The current version of the bill nominally only affects communications between a physician and her patients, and that would be written communications directed to the patient as well as newsletters, listserve messages and such from the physician. It would also include information conveyed verbally to the patient, but physician-to-patient communications made as part of a medical encounter is subject to Board scrutiny because all medical advice or recommendations of a physician is subject to medical board jurisdiction and has to comply with the standard of care. (There is a lot more to say about that, but now is not the time, and here is not the place).

The bill could have a chilling effect on what physicians might be willing to say and recommend to patients, especially new patients. (ya Think!)

This bill and its implications on the physicians’ practices will be the subject of an upcoming zoom meeting of the physician group Physicians for Informed Consent, run by super multitasker Shira Miller, MD, and ably supported by the all but omniscient vaccine lawyer, Greg Glaser. I will be assisting Greg on the call. If you are a physician living under a rock for the past seven years and don’t know about the group or are not a PIC member, now might be a good time to join and attend the Zoom call. Here is the link to PIC’s website: https://physiciansforinformedconsent.org/join/

There might be other opportunities for a non-physician forum/zoom call if the interest is there. I may do a FB or YouTube live stream on the topic to kick around ideas for the last push against the bill.

That’s about all for now.

Rick Jaffe, Esq.