As feared but expected, Governor Newsom signed into law AB 2098. New laws go into effect January 1st of the following year, so unless I am missing something, or unless enjoined by a court, starting 1/1/2023 the California Business and Profession Code will have a new provision, Section 2270 which provides as follows:

2270. (a) It shall constitute unprofessional conduct for a
physician and surgeon to disseminate misinformation or
disinformation related to COVID-19, including false or misleading
information regarding the nature and risks of the virus, its
prevention and treatment; and the development, safety, and
effectiveness of COVID-19 vaccines.
(b) For purposes of this section, the following definitions shall
apply:
(1) “Board” means the Medical Board of California or the
Osteopathic Medical Board of California, as applicable.
(2) “Disinformation” means misinformation that the licensee
deliberately disseminated with malicious intent or an intent to
mislead.
(3) “Disseminate” means the conveyance of information from
the licensee to a patient under the licensee’s care in the form of
treatment or advice.
(4) “Misinformation” means false information that is
contradicted by contemporary scientific consensus contrary to the
standard of care.
(5) “Physician and surgeon” means a person licensed by the
Medical Board of California or the Osteopathic Medical Board of
California under Chapter 5 (commencing with Section 2000).
(c) Section 2314 shall not apply to this section.

(there is also a severability section but that’s not important for this discussion).

What’s not so important

I have put in bold the important points the two really important parts. But, let me start with what is not so important, and it may surprise you. I think all the “disinformation” talk was just PR to stoke-up legislative sentiment and juice-up accusations against physicians. More specifically, I think “disinformation” was used to mislead those who were concerned about the bill to falsely imply that the law would just be used against doctors who were intentionally deceiving patients with “misinformation” about Covid. But in fact, the law targets speech regardless of intent, per the definition of “misinformation” and subsection (a) which includes both.

I don’t think “disinformation” will have any practical effect on the outcome of any board cases. (This discussion assumes the law will go into effect, obviously.) By analogy to criminal law, disinformation requires a prosecutor to prove a specific intent to deceive. Misinformation only requires proof of the speech act with no specific state of mind or intent. It is like a strict liability crime, (and there aren’t too many of those).

So why is this important to know? Because, for among other reasons, a good faith belief in the truth of what the doctor said would be a defense to a disinformation charge. However, it would not be a defense to a misinformation charge. And that is going to make an accusation (i.e., the Medical Board’s charging document/complaint) harder to defend since these accusations will likely contain both mis and disinformation.

So, what is important?

All the real action, and the biggest headache for the Vaccine Concerned community will be with the definition of “misinformation”, meaning “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.”

My view is that the two operative phrases “contradicted by contemporary scientific consensus” and “contrary to the standard of care” at least largely overlap. The standard of care is basically what most professionals in a given field think is the appropriate course of conduct by a professional directed towards a patient/client under the specific circumstances.

Obviously, and by definition, “contemporary scientific consensus” is what most, i.e., mainstream medical professional think is the consensus view of a given treatment or recommendation. Such scientific consensus/standard of care is sometimes impacted or all but decided by specific government agencies like the FDA (in terms of drug treatments in some cases) or the CDC, (like with vaccine contraindications and precautions which the mainstream views as equivalent to a legal medical exemption determination) to the extent that the recommendations are accepted by the (mainstream) scientific community, and they almost always are Another way of saying the same thing is that the mainstream medical community decides the standard of care based on accepted science which is usually reflected by the government agencies, if those agencies have policy statements on treatments or recommendations. It’s all just one big happy family! (Some of you might have a different term for it, but in my view, it does not advance the cause to speak in terms of conspiracy unless there is a very, very tight legal case to be made, and I am not seeing that right now, though I can certainly see some of the players in what could be viewed as concerted action to violate the rights of physicians and patients. But more of that on another day).

Getting back to the two operative phases in the misinformation definition, maybe there are some subtle differences between the two, but mostly I think it’s a belt and suspenders deal. Saying it twice in different words is better than saying it once.

Well isn’t there more than one standard of care?

Yes and no. California, like a few other states, does have a an alternative and complementary defense statute. However, for reasons I might explain in another post, I don’t think that statute will offer much help to Section 2270 board prosecutions.

Well, maybe this law won’t be so bad because it will be hard for the Board to catch doctors who advise their patients in ways that violate Section 2270

I certainly hope that is the case. After all, who can image that a patient who has questions about complying with some part of the mainstream Covid narrative would file a complaint with the Board? I can’t. But complaints can be filed by anyone with knowledge, like a spouse who does not agree with the patient’s decision. But that probably would be fairly uncommon. And let’s remember, it’s not like with medical exemptions for children under SB 277, where the doctors’ medical exemptions were filed with the schools, which turned out to be a very big source of complaints against ME writing physicians.

So the good news is that it is going to be much harder for the Board to find out about doctors who advise their patients, say not to take the vaccine, or prescribe Ivermectin (assuming careful prescription fulfillment practices) right? Maybe yes,m but maybe no.

I think I will stop here with that question. In the next post, I will be explaining what I expect to be the Board’s workaround to the Board’s ostensible impasse in identifying the patients who have been subjected to mis/disinformation.

Rick Jaffe, Esq.