Cali. AB 2098 has now passed the Assembly and is in the Senate for consideration. As a reminder, AB 2098 makes it a board disciplinable offense for physicians to spread “Covid misinformation” to their patients.

I think you can assume that questioning the safety and efficacy of the Covid vaccines, and speaking positively about the off-label and conventional medicine rejected pharmaceutical Covid treatments (Ivermectin and HCQ) would also be considered by the Board to be Covid misinformation or disinformation. Questioning the necessity of masks, beyond what the health authorities say would also be included as well.

I am told that it looks like the bill could pass the Senate by a relatively comfortable 10-vote margin. FYI the Dems have 31 seats and the Republicans have 9 seats in the 40-seat senate, (according to Wikipedia). Convincing 10 Democrats not to support the spread of what public health authorities consider to be the dangerous spread of Covid misinformation is going to be a very tough sell for many reasons.

I listened to the first hearing on the bill and what struck me was the imbalance in the people and organizations who came out for and against the bill. Many of those in favor of the bill were health care professionals, many of whom represented professional organizations. Most of those opposed were lay folk, some of whom spoke on behalf of the grassroots organizations opposed to vaccines or vaccine mandates. Those folks were by and large respectful and followed the very limiting rules (state your name, organization, and whether you are for or against the bill). However, some of the individuals speaking for themselves were disrespectful or scatological, and at least one person actually threatened the legislators if they passed the bill. To my way of thinking, it was a disappointing performance and did not advance the case against the bill, if the goal was to convince Democrats to change their minds.

Of course, the current version of the bill is a far cry from the original version which made the public expression of unconventional views about Covid disciplinable. Still, if passed, the bill will have some effects, both direct and indirect. Let me share some of the things I talked about in a recent Physicians for Informed Consent Zoom call.

Direct Effects

The primary effect of the bill will be on physicians who communicate to their patients as a group via a newsletter, email listserve, or a social media platform for patients. Of course, the bill also covers one-on-one communications with patients, but I don’t see a major effect on those types of communications for two reasons. First, practically speaking, there would have to be a complaint by the patient or a family member notifying the board of the physician’s conveying Covid misinformation. I think that is unlikely in the absence of some adverse medical condition that occurs after the communication. Physicians can judge for themselves how likely or unlikely an adverse consequence would occur after such communication or advice.

Second, and more importantly, the advice a physician gives to a patient is already subject to the Board’s disciplinary powers under its primary disciplinary statute, Bus. & Prof. Code Section 2234. This statute makes a physician’s negligence and incompetence board sanctionable. There is no First Amendment right to provide negligent or incompetent advice or treatment to a patient. Of course, that raises the question as to whether 1. providing a non-mainstream view of Covid vaccine safety, 2. the value of off-label Covid treatments and or 3. the utility of masks constitutes negligent advice or treatment. The resolution of that issue will be on the usual Section 2234 standard of care analysis, and more about that later.

Indirect Effects of AB 2098

Right now, I suppose it is possible to argue that the Board has no policy regarding say, prescribing Ivermectin and HCQ for Covid, and that lack of policy is probably giving some Cali. doctors comfort that they have the discretion to do so. I think that’s going to be a tougher argument to make if AB 2098 passes, perhaps obviously so.

But I could also argue that it doesn’t really matter whether any individual doctor thinks there is no currently existing board policy on this or any other issue. That is because, now or next year (when AB 2098 takes effect if it becomes law), the issue is what is the standard of care, say for treating Covid.

California physicians are assumed to know and follow the standard of care. I think it is pretty obvious that conventional medicine and public health officials are of the opinion that Ivermectin and HCQ are not proven to be safe or effective for a Covid patient and that the studies showing benefits are flawed (according to them). Of course, a few highly credentialed physicians support these treatments and many front-line physicians who use these drugs. Board disciplinary cases are a battle of the experts, and let me just say that it’s not exactly a fair fight. The Board usually brings a UC professor from the field. The defending doctor usually brings a practicing physician. Oftentimes, a physician’s attempt to bring more than one physician expert is rejected on the grounds that the testimony is duplicative. The bottom line is these board cases will probably be decided on the regular standard of care analysis. There is of course supposedly a safe harbor for alternative and complementary medicine (Section 2234.1). However, based on some recent cases, I have some doubts whether the judges will buy this. But we’ll see.

Still and all, the point is that if AB 2098 passes, physicians are going to be on notice about how the Board will judge physicians who just provide information about these unaccepted treatments, let alone physicians who actually prescribe them. Some physicians may decide that it is not worth it. Others will employ various tactics to try to limit their exposure to the Board. I do have some thoughts about some of these techniques and their efficacy, but now is not the time and this is not the place to get into it.

More on Direct Effects

Physicians who hold minority beliefs about Covid and communicate to their patients en mass are the targets of the current version of AB 2098. As suggested, some of them might become more circumspect about what they say in their newsletters and such. Others will continue as before.

I think the most in danger are the highly visible high profile doctors; those who are already on the Board’s and the Department of Public Health’s radar screen. Within that subset, the highest risk might be those who already are on probation for vaccine medical exemption writing. Those are the docs who I think really need to carefully consider what they say.

I suspect that doctors will come up with all kinds of linguistic tricks to try to protect themselves (like distinguishing between one’s professional vs personal opinion or other similar antonyms).

This Board endeavor will be new for everyone, and there are no on-point board rules analogous to the FTC rules of false advertising. So, we are only going to really know what kind of qualifiers might work as a result of board cases, or in pre-board investigations.

One thing I am pretty sure about is that the bill is going to be challenged on multiple grounds. I expect to file an action, in part on constitutional grounds and I think others will also. The more circumspect, accurate, and complete the physician’s unconventional information, the stronger the physician’s case will be.

But that’s down the road, if the bill passes. For now, the thing to do is to contact your Democratic Senators and tell them what you think, and if you personally know any of them, even better.

As for physicians, they should certainly start taking a critical eye to what they are telling their patients in their newsletters and mass communications.

Rick Jaffe, Esq.