On September 12, the California legislature sent to Governor Newsom’s desk AB-2098, that “would designate the dissemination [by physicians and surgeons] of misinformation or disinformation related to the SARS-CoV‑2 coronavirus, or ‘COVID-19,’ as unprofessional conduct,” which means they may be sanctioned or lose their license. The bill defines “misinformation” as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.”
At first blush, this might seem reasonable. After all, it’s considered medical malpractice to violate the “standard of care”—the consensus of peer medical professionals regarding the proper way to diagnose and treat specific health conditions. And state licensing boards are charged with enforcing the standard of care, holding licensees accountable for violations.
But when dealing with a unique public health emergency, in this case a pandemic caused by a completely novel virus, there is no standard of care. As should be quite evident nearly 3 years after the virus appeared, the “science” is continuing to evolve—as is the virus. Standard of care requires a length of time of experience with the disease for a true consensus to emerge regarding diagnosis and treatment. Right now we merely have “official” recommendations from government “experts” (which often differ with the government experts in other developed countries) and dissenting doctors/scientists who get dismissed as “fringe.”
Our understanding of how the virus spreads, how best to control spread, how to accurately diagnose a COVID-19 infection, how to treat infection, and even how effectively vaccines work against the virus gets continually revised. Scientific opinions once dismissed as “fringe,” such as employing a pandemic policy of “focused protection,” are now gaining traction as the pandemic has become endemic. (We discussed this at a Cato online policy forum last month.) Reasonable people in the public health community still disagree about the need for and timing of COVID vaccine boosters. The constant churning of scientific knowledge about how the virus works and how to treat infections means medical science doesn’t yet know enough to arrive at a standard of care.
As I wrote in “Against Scientific Gatekeeping” last April, this is how science works. Science is a process, not a doctrine. It’s a profession, not a priesthood. I wrote:
For scientific knowledge to advance, scientists must reach a rapprochement with the uncredentialed…They must fight against the understandable desire to avoid any hypothesis that might upset the health bureaucrats who control billions of research grant dollars. It is always useful to challenge and reassess long-held premises and dogmas.
When Dr. John Snow bucked conventional wisdom by suggesting the 1854 London cholera epidemic was caused by a contaminated water source—not by “bad air” or, as it was called, a miasma—he was dismissed by the public health establishment. He was vindicated in 1866 when public health officials reconsidered his theory during the next cholera outbreak. If a law akin to AB-2098 had been in effect, would authorities have revoked Dr. Snow’s license in 1854 for peddling “misinformation?”
California lawmakers probably have good intentions. They don’t want physicians to harm patients by suggesting that they disregard the recommendations of public health officials or try an unproven and perhaps harmful treatment against this potentially deadly infection. But AB-2098 is not the solution. There’s a risk it may become a tool used to stifle scientific debate and suppress scientific advancement. Thankfully, this bill is restricted to discourse about the COVID-19 virus—for now. Hopefully, Governor Newsom will take note of its possible unintended consequences.
