California Misinfo Law Is Destined for the Dustbin

California's attempt to pave a path for its physician licensing boards to discipline doctors who give false COVID information to patients appears to be headed for the dustbin of failed ideas.

Inserted two-thirds of the way down in a bill on September 5, a Senate committee amendment would repeal state law authorized by the controversial AB 2098. That law had specifically defined the dissemination of COVID-19 misinformation or disinformation by a licensee as unprofessional conduct, subject to board disciplinary action.

A vote on the bill is expected this week.

During the heaviest days of the pandemic, some board members as well as physicians fed up with misinformation -- especially about the value and safety of COVID vaccines -- said they wanted such guidance in the belief they needed a clear mandate to rein in contrarians to prevent hospitalizations and save lives.

Signed into law by Gov. Gavin Newsom on September 30, 2022 with a statement of caution, AB 2098 said that a doctor who spread false or misleading information about COVID prevention and treatment or questioned the effectiveness of COVID-19 vaccines could have his or her license suspended, placed on probation, or revoked.

Newsom wrote at the time that he believed the new law "is narrowly tailored to apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient under their care."

But there was confusion about the bill from the start. Initially, the idea behind it was to discipline doctors who spread false information about COVID anywhere, including on social media or at public events. Authors of the bill had in mind curtailing activities such as that of California licensee Simone Gold, MD, JD, who breached the U.S. Capitol during the January 6, 2021 insurrection and gave a speech opposing COVID-19 vaccine mandates and government-imposed lockdowns, and who publicly advocated unproven COVID treatments such as hydroxychloroquine.

But concerns about the First Amendment prompted lawmakers to narrow the scope, applying the language only to those physicians who convey such misinformation to a patient under the licensee's care, which is much harder to prove.

Further, the law specified that the misinformation conveyed had to be "contradicted by contemporary scientific consensus contrary to the standard of care," which many argued was up for broad interpretation, especially given that knowledge about some aspects of the virus, its mutations, prevention, and treatment regimens were scientifically unclear and evolving.

The law immediately provoked outcries from some physicians who claimed it violated their First Amendment rights, and prompted several lawsuits challenging its constitutionality. The American Civil Liberties Union filed briefs in support of several of the legal challenges.

Opposing physicians argued that the science behind effective treatment, especially during COVID, could rapidly change, as could "contemporary scientific consensus" at any point in time.

On January 25, Sacramento U.S. District Judge William Shubb granted a temporary injunction prohibiting anyone from enforcing the law against plaintiffs, saying that the law's language was "unconstitutionally vague."

Jenin Younes, an attorney with the New Civil Liberties Alliance and lead counsel in that case, said she's pleased that requirements set forth by 2098 are likely being repealed. The state legislature, she said, is "apparently recognizing that the law is unlikely to survive court challenges," including the one she filed on behalf of California licensees Tracey Hoeg, MD, Ram Duriseti, MD, Aaron Kheriaty, MD, Pete Mazolewski, MD, and Azadeh Khatibi, MD.

"It's a shame that these doctors had to take the state to court to see their First Amendment and Due Process rights vindicated. The clearly unconstitutional law never should have been passed in the first place," she said.

Chessie Thacher, senior attorney with the Northern California ACLU, also was glad the repeal seemed to be moving forward. "As we argued in court, that bill was dangerously overbroad and confusing. It chilled doctor speech and risked compromising the medical advice patients receive," she said. "AB 2098 was also unnecessary because the state had -- and continues to have -- numerous ways to handle doctors that practice below the standard of care."

Indeed, several members of the Medical Board of California, as well as speakers at last year's legislative hearings, said they believed the board already had the power to discipline doctors for disseminating false COVID-19 information.

As an example, the MBC filed an accusation on June 23 against Ana Rebecca Reyna, MD, a Tehachapi-based internal medicine doctor who, the board document alleges, made a number of false statements to a patient in her care in April 2021 -- nearly 18 months before the bill was signed into law.

State documents said that Reyna told her patient that available COVID vaccines "contained fetal tissue, would alter his DNA irreparably, and were linked to a significant increase in miscarriages." She also allegedly "indicated that masks do not stop COVID."

Reyna, the accusation continued, also told the same patient that "when dealing with patients who exhibited COVID symptoms she directed them to purchase veterinary ivermectin, intended for horses."

She also told her patient that his girlfriend should "avoid the COVID vaccines if she wants to get pregnant" because the vaccines "were responsible for a 366% increase in miscarriages."

"By making one or more of the statements set forth, Respondent [Reyna] committed an extreme departure from the standard of care by providing advice about COVID-19 that was not accurate, and did not clearly relay to Patient A that the advice did not comport with the standard of care in the community," the board accusation said. The law resulting from 2098 was not mentioned.

The allegations against Reyna await a final determination by the board, and Reyna will have a chance to defend herself.

Nick Sawyer, MD, a Sacramento-area emergency physician who has been outspoken against COVID misinformation, also agreed that the legislature didn't need to pass AB 2098 to stop doctors from potentially harming patients with false medical advice.

"The Medical Board of California already had the mandate and means to address these doctors even before the pandemic," he said.

However, he said he's perplexed to see so much celebration of its repeal. "I trust that the MBC will prioritize public safety by ensuring doctors base prescriptions and their medical opinions on science, not ideology," he said.

Asked what he thought of the amendment that appears destined to repeal the law he fought hard to pass, Assemblyman Evan Low (D-Campbell), seemed to be on board.

Through a spokesman, he said, "fortunately, with this update, the Medical Board of California will continue to maintain the authority to hold medical licensees accountable for deviating from the standard of care and misinforming their patients about COVID-19 treatments."

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