Penalizing Medical Misinformation – A Dangerous Slippery Slope

by W Sullivan
Confused Doctors Staring at Paper

This is a re-post of an article I wrote in EP Monthly. I have supplemented that post with some links to additional information.

Penalizing Medical Misinformation – A Dangerous Slippery Slope

In 1847, Dr. Ignatz Semmelweis presented data demonstrating a ten-fold decrease in the incidence of postpartum infections when physicians simply washed their hands. The government didn’t sanction him and his speech wasn’t censored. Instead, “experts” of the time (including Rudolf Virchow) relentlessly mocked him for daring to suggest that doctors’ hands could be unclean. He was involuntarily committed to a mental institution and ironically died of an infected wound two weeks later. Only after Semmelweis’ death did Joseph Lister expand upon Semmelweis’ findings to develop an “antisepsis system.”

In 1982, Dr. Barry Marshall made the outrageous proposal that gastric ulcers were not caused by “Type A” personalities but were instead caused by an undefined spiral bacterium. He wasn’t subject to censorship or government sanctions, either. However, he did receive ridicule from “experts” who did not believe that bacteria could survive the acidic environment of the stomach. Marshall had to drink a solution containing these bacteria and publish a study demonstrating the significant endoscopic inflammatory changes in his stomach before the medical community would consider his theory that Helicobacter pylori may be a cause of gastric ulcers and gastric cancer.

In 2023, it is disappointing to be writing an article reiterating the dangers of confirmation bias and highlighting the importance of free speech. Unfortunately, we now seem to be entering another Semmelweis moment.

The First and Fourteenth Amendments guaranteeing the right to free speech at the federal and state levels were adopted in 1791 and in 1868. More than 150 years later, attacks on free speech continue under the guise of protecting the public from “medical misinformation.” Our Constitution does not provide blanket protection to ALL speech. Threats, obscenities, defamatory statements, hate speech and “fighting words” are among the categories of speech not constitutionally protected.

Additionally, free speech rights are generally enforceable only against governmental entities, not private entities. Nevertheless, state medical boards and other governmental entities are repeatedly attempting to inappropriately restrict the free speech rights of health care professionals under the guise of limiting the spread of misinformation.

Medical Misinformation 2The Federation of State Medical Boards has called for state medical boards to issue sanctions against health care providers accused of spreading “misinformation” about the COVID-19 pandemic and the US Food and Drug Administration recently created a “Rumor Control” website to “stop the spread” of online health misinformation. The FDA website encourages the public to obtain health information only from reliable sources “like the FDA and our government partners” and to report any instances of misinformation.

As the following court cases show, government entities are having difficulty defining and enforcing policies against “medical misinformation” and physicians who fight back against harmful misinformation policies are having some success.

Hoeg v. Newsom

In September 2022, California Governor Gavin Newsom signed Assembly Bill 2098 into law. This legislation deems it “unprofessional conduct” for a physician to “disseminate misinformation or disinformation related to COVID-19.” The definition of “misinformation” under the law was “false information contradicted by contemporary scientific consensus contrary to the standard of care.” Under the California Medical Board Manual of Model Disciplinary Orders and Disciplinary Guidelines, the minimum penalty for general “unprofessional conduct” is a stayed license revocation with 5 years’ probation (.pdf document – see page 24). Some noted how this legislation would have a “chilling effect” on California physicians.

Dr. Tracy Hoeg and other parties sued Gavin Newsom and the members of the Medical Board of California to prevent enforcement of Assembly Bill 2098 based on First and Fourteenth Amendment arguments. In January 2023, the US District Court for the Eastern District of California granted the plaintiffs’ request for a preliminary injunction preventing enforcement of Assembly Bill 2098 (.pdf document). The Court noted that the term “scientific consensus” was a “poorly defined concept” and that experts provided by the state were “notably silent” in attempting to define the term.

The Court also raised issues with who determined when a “consensus” existed, who must agree with the “consensus,” where the “consensus” should apply, and how physicians could determine what constituted a “consensus” at any given time. Because the term “scientific consensus” was so ill-defined, if the law was enforced, medical providers would be “unable to determine … what is prohibited by the law.” Similarly, the term “false information” was also deemed vague because COVID-19 studies are ongoing and “it may be hard to determine which scientific conclusions are ‘false’ at a given point in time” or what may constitute credible sources. The Court therefore enjoined Governor Newsom, the California Medical Board, or any party acting on their behalf from enforcing the terms of Assembly Bill 2098 (codified as CA Bus & Prof Code § 2270) until resolution of the court case.

Eggleston v. Washington Medical Commission

The Washington Medical Board charged Dr. Richard Eggleston with “unprofessional conduct” after he published several articles critical of mainstream COVID ideology. The alleged “unprofessional conduct” included citing study statistics and applying those statistics to COVID evaluation and treatment. For example, one of Dr. Eggleston’s articles cited CDC statistics that 94% of 591,000 COVID deaths had underlying causes. He therefore argued that “therefore only 6% were actual COVID-19 deaths.” In another article, Dr. Eggleston questioned the utility of COVID PCR testing, citing a 95% false positive rate claimed by the inventor of PCR testing, Kary Mullis. In other articles, Dr. Eggleston cited studies suggesting that mRNA COVID-19 vaccines may alter human DNA, argued that immunity to SARS-Cov-1 is still present 17 years after exposure and therefore COVID boosters cannot help long-term immunity, and criticized medical journals for censoring data about ivermectin use in COVID treatment. After Dr. Eggleston submitted written responses to the Board’s accusations, the Board further alleged that the statements and studies cited in his response amounted to “moral turpitude, dishonesty, or corruption” relating to the practice of medicine and for “interfering with an investigation or disciplinary proceeding.”

Dr. Eggleston attempted to dismiss the Board’s allegations based on arguments that his First Amendment rights were being violated. When those requests were denied, he filed a lawsuit in Washington State court and attempted to obtain an injunction preventing the Medical Board from proceeding with its licensure action. The Washington Superior Court denied his request and Dr. Eggleston appealed to the Washington Court of Appeals.

Despite the Board’s allegations that it was protecting the public from a “rogue physician” who was making “lethal statements,” the Court of Appeals granted Dr. Eggleston’s request for an injunction. In its short ruling, the Court of Appeals stated that “public dialogue by a professional . . . receives the greatest First Amendment protection” and that even the process of prosecuting Dr. Eggleston for exercising his First Amendment rights may have a “chilling effect” upon not only Dr. Eggleston, but upon “all other members of the medical profession.”

Sullivan v. IDFPR

In early 2022, the Illinois Medical Board issued a public health communication stating that advice or treatment regarding COVID-19 must be “evidence based” and comport with the standards of care. The notice threatened adverse licensure action against those who violated CDC guidelines relating to mask use or ivermectin use, those who disseminate COVID “misinformation,” and those who “practice inconsistent with current state and federal guidelines.” The notice also encouraged reporting of professionals who may have committed these transgressions.

In response to the Medical Board’s notice, I made a request under the Illinois Freedom of Information Act seeking the evidence-based information, (including medical studies) that the Medical Board relied upon to form the bases for its threats. I requested the basis for alleging that acting in a manner inconsistent with CDC recommendations is sufficient to subject a licensee to discipline. I cited the FDA statement permitting “off label” use of medications and requested the Board’s justification for alleging that “off label” prescriptions may be a potential cause for disciplinary action. I asked for examples of “misinformation” that would subject a licensee to disciplinary action.

When the Medical Board failed to respond to my requests for information, I filed a lawsuit to force it to respond. The Illinois Medical Board eventually provided several e-mails, position statements from other agencies, and two COVID notices distributed in Texas and Washington. The Board didn’t produce a single medical study to support its threats of discipline. The Board refused to comment on why it would even consider disciplining licensees for “off label” use of medications when such use is explicitly approved by the FDA. The Board refused to provide any information why failing to follow CDC “guidelines” could be cause for licensure action. The Board refused to provide any examples of “misinformation” for which a licensee would be subjected to disciplinary action. The Board even refused to provide the identities of the Board members and staff who contributed to creating the notice, stating that “the [Board] is not required to provide answers.” After more than a year of litigation, I won my lawsuit. The Court acknowledged that the Illinois Medical Board violated Illinois law by withholding information from me and ordered the Medical Board to reimburse me for the costs I incurred in filing the lawsuit.

Medical Misinformation Policy Issues

Attempting to ensure dissemination of only truthful and accurate health information is a laudable but Sisyphean goal. As the California District Court noted in the Hoeg case, allegedly wrongful conduct cannot be reliably defined and what is considered evidence-based medicine and proper medical treatment of COVID-19 will likely change as medical studies continue. The paucity of information produced by the Illinois Medical Board in response to my lawsuit showed that medical boards may have little scientific evidence supporting their threats of licensure actions and therefore may fail to adhere to the same “evidence-based practices” to which they hold physicians.

Medical misinformation

By allowing speech to be indiscriminately censored as “misinformation,” we permit those in positions of authority to suppress information that is contrary to their beliefs – even if that information is truthful. It becomes easy to form a “scientific consensus” when you censor those who don’t agree with your beliefs. In 1979, Malcolm Feeley wrote a book describing the difficulties that lower criminal court defendants had in attempting to fight the charges against them. The title of the book was “The Process is the Punishment.” Although medical licensure actions do not amount to criminal prosecution, the due process implications are no less onerous. Even the threat of taking an adverse licensure action to potentially prevent a physician from practicing medicine becomes a form of coercion that silences dissenting voices and stifles public discussion.

Rather than censoring contradictory views, we should respond to such views with scientific discourse. For example, in response to one of Dr. Eggleston’s columns, several physicians created a letter to the editor refuting several statements made by Dr. Eggleston as unproven treatments. Ironically, this letter to the editor demonstrates how punishing “medical misinformation” can quickly become a very slippery slope. In their letter, the physicians publicly stated that “vitamins, zinc, melatonin, curcumin and aspirin have not been shown to have beneficial effect with regards to COVID-19 disease.” This statement is demonstrably false. Vitamin D has been one of the most studied treatments for COVID and shows an average 39% improvement in COVID outcomes with a 31% decrease in COVID mortality. In fact, each of the medications these physicians listed has been subject to multiple studies showing an overall benefit when used for the treatment of COVID. If COVID-19 misinformation must be punished, each of those physicians should be subject to adverse licensure actions for false claims relating to COVID-19 information.

Selectively disciplining only “medical misinformation” contrary to a medical board’s unsubstantiated beliefs creates a public impression of ill-informed actions, untrustworthiness, and political activism. Such selective discipline may also subject medical board members to legal liability.

A physician’s medical license is a property right earned after hundreds of thousands of dollars in educational expenses and years of hard work. It is one of many property rights protected by our Constitution. The public would revolt if government actors took away the general public’s property (such as their homes or educational degrees) for “dissemination of misinformation.” Yet many people, including some professional organizations, believe that medical providers should be censored and summarily stripped of the property rights in their medical licenses for expressing a good faith opinion or well-supported argument contrary to mainstream medicine. Courts are repeatedly disagreeing with such flawed beliefs.

It is also important to note that the unintended consequences of prosecuting medical misinformation would likely make the spread of medical misinformation worse. If health care workers are reticent to discuss medical issues, the lay public – unable to be censored by medical boards – will be able to disseminate medical misinformation without consequence. Medical professionals would likely avoid disputing inaccurate statements made by the lay public for fear of adverse licensure actions.

Social media companies continue to remove alternative views from their platforms, alleging “misinformation” simply because those views may contradict the World Health Organization or “local health authorities.” We cannot allow counterarguments to be labeled “misinformation” simply because they cannot be rebutted. We cannot allow scientific data to be labeled “misinformation” simply because it doesn’t support some preconceived bias. Alleged “medical misinformation” should be overcome by scientific evidence and further dialogue, not by censorship and adverse licensure actions. We cannot allow the “process to be the punishment.”

It is reassuring to know that our court systems are standing up for justice and the constitutional rights of physicians when many of our professional organizations fail so miserably at the job.

“When you tear out a man’s tongue, you are not proving him a liar, you’re only telling the world that you fear what he might say.”

George R.R. Martin

Having difficulty with a medical licensing board? Contact me. I would be happy to try to help.

Want to read more articles about medical board actions? Check out the posts in my “Medical Boards” category.

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