Paving the Road to Hell

Regardless of Intent, California’s AB 2098 is a Bad Idea

Let’s start by acknowledging a few things. First, there has absolutely been misinformation put forward during the COVID pandemic. I would include the charges of scientific fraud or that the pandemic was planned into that bucket. The nonsense about microchips in the vaccine would have been rejected by any respectable creative writing contest. And there were absolutely individuals who hyped unproven benefits of treatments like ivermectin while ascribing all manner of harms to the mRNA vaccines.

By the same token, though less likely to get a person banned from social media, United States public health officials have at times been guilty of wildly exaggerating the potential benefits of vaccines. In particular, in efforts to get uptake of the latest bivalent booster, Whitehouse COVID spokesman Dr Ashish Jha credited the new bivalent booster, which has literally no human trail data, with a range of benefits that were minimally, if at all, supported by data. Jha stopped just short of singing the “Head, shoulders, knees and toes” song when advocating for simultaneous boosters and flu vaccine administration. One hopes Dr. Jha’s dignity is earning interest wherever it is being kept while he holds his current position.

Whichever “side” of the COVID debate you come down on, at least one of the above paragraphs probably bothered you. Personally, I would prefer to use a data-driven approach to how I advise patients, and both flavors of these public campaigns have made that job harder, not easier. I certainly wouldn’t mind less hyperbole on social media, from both directions. 

But California’s AB 2098 doesn’t actually address any of these excesses. It isn’t about that wild story your grammy sent you on Facebook. It is about inserting a very legalistic approach to communication into the doctor patient relationship. I oppose it for several reasons.

First, some of the particular about the proposed bill, which, as of this writing, has been passed and awaits Governor Newsom’s signature. The main provision is as follows:

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.

It includes these important definitions:
(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.

I don’t think we need to spend too much time on “disinformation.” I would be shocked if treating patients with “malicious intent” is not covered somewhere under the laws governing California’s physicians.

Likewise, there is no controversy over the intended meaning of “disseminate.” We are not talking about a doctor going on a podcast and broadcasting harmful views. The bill is very specific that is inserting itself into the personal conversations between doctors and patients.

Which brings us to “misinformation,” about which I have more to say on how difficult this will be to define. 

I have three main objections to the bill: it does not define “consensus,” it will inhibit the individualization of patient care, and it runs the risk of exacerbating a shortage of physicians that is already the worst in the nation. 

To say that the COVID medical literature and consensus has been “evolving” would obscure the whiplash nature of the changes. Viewpoints that could be characterized as consensus at various times include that toddlers need to be masked, that masks do not inhibit language development, that the vaccine myocarditis was mild and transient, and that post-infection immunity was not robust. All of these have been censored at times on social media or dismissed by US public health officials. And yet all were ultimately proven mistaken to at least some degree. If AB 2098 had been law, would doctors discussing these hypotheses with patients have been subject to legal sanction? It’s hard to see how they would not at least have been at risk.

Which brings up my second point, that this bill strikes at the heart of the physician/patient conversation. Healthcare involves nuance. As a practicing oncologist, I talk with patients who range from those taking active chemotherapy to patients with many years of remission. I give individually tailored advice about such options as masking, preventative treatments like Evusheld, primary vaccination and COVID boosters, including the new bivalent. Having to watch my every word for something that might be contrary to an ill-defined consensus would make these conversations more guarded, and anything that gets in the way of a free discussion between patient and provider must clearly be preventing serious harm. No evidence has been presented that this is occurring at any scale in the doctors’ offices of California.

While we are on this point, let’s not pretend that the weaponization of conversation won’t tend to run in a single direction. One of the lead advocates for this bill, Dr Richard Pan, routinely scrubs his social media for any dissent on this topic, and he has made clear his advocacy for continued strict policies on compulsory masks and vaccination. The Big Tech censors who are alleged to have collaborated with the Federal Government have likewise been much freer about banning discussion of vaccine side effects that they are about Dr. Jha boosterism for boosters. I have little doubt that, as implemented, AB 2098 would continue to be a sword that cuts in only one direction.

Finally, there is a crisis in primary care in the United States, and it is particularly acute in California. It already has a physician population that is older and more heavily taxed than the rest of the country. Do these physicians really need one more reason to move to a friendlier state? Governor Newsom, who makes little secret of his Presidential aspirations, would be wise to avoid allowing a bill to become law that adds to the 7,000,000-11,000,000 million Californians with inadequate access to healthcare.

Intentions matter, up to a point, and I share the sentiment of wanting patients to have access to accurate information with which to make their health decisions. But there is an old saying about intentions for a reason.

AB 2098 is a bill that would be unevenly enforced, would inhibit communication, and would risk exacerbating the worst healthcare shortage in the country. It should not become law.

Cheers, y’all.

Photo Credit: kovop58 licensed via Pixabay