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    Is spreading medical misinformation a physician’s free speech right? It’s complicated

    In an age of widespread misinformation, the medical profession is navigating the line between doctors’ First Amendment rights and unacceptably dangerous advice.

    Prohibition sign for fake news. Vector illustration.

    Editor’s note: This article is part of a series on freedom of speech, misinformation, and medicine. Other articles in this series include stories about intolerance on medical school campuses and increasing threats to academic freedom.

    COVID-19 vaccines are ineffective and unsafe and may even cause infertility. Masks don’t provide any protection against the SARS-CoV-2 virus. Ivermectin, a medication generally used to deworm animals, is an effective treatment for COVID-19.

    These statements are among the many types of misinformation disseminated by doctors on social media during the pandemic, according to recent research published in JAMA Network.

    In fact, dozens of physicians practicing in nearly 30 different specialties across the United States spread a vast array of COVID-19-related misinformation during the pandemic, the paper found. These physicians posted unproven claims on at least five different platforms, likely reaching millions.

    The authors went on to note that about 1 out of every 3 reported COVID-19 deaths in the United States as of January 2023 was considered preventable if public health recommendations had been followed.

    Such reports of medical misinformation raise some crucial free speech questions: What are physicians allowed to say, both in the public sphere and to their patients? And how can the medical profession and state licensing boards ensure that a provider can share their medical opinions while also guarding against dangerous, even deadly, advice?

    “In this country, we deeply value freedom of speech, but it’s important to remember that this is not an absolute, unlimited right. Just like a person can’t shout ‘fire’ in a crowded theater, a doctor can’t seriously harm patients with their speech,” says Richard Baron, MD, who has spoken about the issue as president of the American Board of Internal Medicine (ABIM).

    In June 2022, in an attempt to curb the spread of misinformation, the American Medical Association adopted a policy outlining specific steps to identify and curb false and misleading medical information. The organization's Code of Ethics also states that any medical information doctors provide should be based on valid scientific evidence. But such guidelines are recommendations, not legal requirements.

    When it comes to the law, the extent to which a physician can share their views on medical matters is based partly on constitutional free speech protections. But it's also determined by other legal domains such as contract law, which could impact whether a doctor can be fired for what they say, and tort laws that govern malpractice claims.

    In this country, we deeply value freedom of speech, but it’s important to remember that this is not an absolute, unlimited right.… [A] doctor can’t seriously harm patients with their speech.”

    Richard Baron, MD
    American Board of Internal Medicine

    The issue of questionable medical guidance can come up in numerous contexts, from childhood vaccines to transgender care to conversion therapy for gay patients. But physicians’ problematic advice is particularly concerning when vast numbers of lives are at stake, such as during the COVID-19 pandemic, experts say.

    “I volunteered in an ICU in New York City during the first wave of COVID, when every patient was dying. It was clear that disinformation was causing a great deal of unnecessary suffering and death,” says Nick Sawyer, MD, an emergency medicine physician in Sacramento, California.

    “Some doctors present the harm here as censoring them for their alternative views,” Sawyer adds. “The real harm lies in practicing medicine that is not based on science.”

    The law and doctors’ rights and responsibilities

    To understand physicians’ free speech rights, it helps to consider a few fundamental points.

    When speaking to the broader public, including on social media, doctors have more legal protections than when they are giving medical advice to a specific patient, experts say.

    “On platforms like YouTube and TikTok, doctors basically are like any other person,” explains constitutional expert Claudia Haupt, JSD, PhD, a professor at Northeastern University School of Law in Boston. “The underlying principle is that it’s so important to a democracy not to allow the state to restrict free speech that it’s worth living with some terrible advice floating around.”

    Haupt adds another key point when it comes to physicians’ free speech: Because the First Amendment guards against government action, its protections don’t apply if one works for a private employer. In fact, in one high-profile case, Houston Methodist suspended a physician for COVID-related concerns that included posting anti-vaccine statements on the platform X, formerly known as Twitter, in 2021. (The physician denies any wrongdoing.)

    “To be clear, you do not sacrifice your free speech rights when you get your medical license,” says William Sage, MD, JD, a professor of law and medicine at Texas A&M University in Fort Worth.

    “However, the state can take you to task for any injury your speech causes your patient,” says Sage, who authored a 2022 JAMA article on free speech and misinformation. “If you make an incorrect recommendation, like inappropriately suggesting a dangerous medication, you can be held accountable for the harm you cause.”

    This accountability is due in large part to the fact that physicians — like lawyers and many other professionals — must obtain a state license to practice their chosen profession. In the case of physicians, state medical licensing boards grant a license only after a doctor passes a multipart exam proving scientific knowledge and clinical competence, and it comes with an obligation to adhere to accepted standards of professional conduct. If a physician is found to have engaged in unprofessional conduct, that same state board can discipline and even revoke their license to practice.

    Each state medical licensing board has its own medical practice act describing — with varying degrees of specificity — the conduct that might warrant disciplinary action.

    For example, Wisconsin’s code says that unprofessional conduct includes “knowingly, negligently, or recklessly making any false statement, written or oral, which creates an unacceptable risk of harm.”

    Illinois’s act says doctors can be disciplined for “making a false or misleading statement regarding … the efficacy or value of the medicine, treatment, or remedy prescribed by them at their direction in the treatment of any disease.”

    “To be clear, you do not sacrifice your free speech rights when you get your medical license. However, the state can take you to task for any injury your speech causes your patient.”

    William Sage, MD, JD
    Texas A&M University

    In an unusual move, California passed a bill in September 2022 designating the sharing of COVID-19 misinformation with patients as unprofessional conduct and therefore subject to disciplinary action.

    Several plaintiffs sued to stop the enforcement of the law, arguing that it contained constitutional flaws, including that “misinformation” was too hazily defined. The law described it as false information contradicted by “scientific consensus contrary to the standard of care.”

    “The wording was very vague and confusing. Doctors couldn’t know what ‘standard of care’ is,” says Jenin Younes, JD, who represented the plaintiffs. “And what is ‘consensus’? Is it 60% [of physicians]? 85%? The result was chilled speech.”

    The judge agreed that the wording of the law was too vague and granted a preliminary injunction blocking it. The legislature acted to repeal the law in August 2023, effective January 1, 2024.

    Deciding what constitutes medical misinformation

    But how can physicians — and their patients — know what constitutes problematic medical advice, especially when science sometimes shifts with massive speed? And who gets to decide?

    Hoping to help answer those questions, the Federation of State Medical Boards (FSMB), which represents 70 state medical and osteopathic licensing boards and is widely recognized as an authority on medical licensing and disciplinary issues, convened a group of lawyers, ethicists, and state medical board members for nearly a year of deliberations in 2021-2022. The result was a 12-page document with detailed recommendations around professional expectations regarding medical misinformation and disinformation.

    The document declares that physicians “must use the best available scientific evidence” when advising patients or the public. “We had a lot of discussion before we settled on using ‘must,’” says FSMB President Humayun Chaudhry, DO.

    The recommendations define scientific evidence as information from peer-reviewed journals, methodologically sound clinical trials, nationally recognized clinical guidelines, and similarly vetted sources.

    If such sources don’t yet exist (which frequently was the case at the beginning of the COVID-19 pandemic), a doctor’s advice then needs to have a plausible basis in scientific theory or prevailing practice. And physicians should only recommend novel or experimental interventions after trying accepted and proven ones, the document states.

    But Younes says limits to novel approaches can be problematic during a crisis like a pandemic. “With something new like COVID, it's really important that doctors are able to go with their experience and what they are seeing on the ground,” she says.

    And she worries about the possible squelching of dissenting perspectives. In a press release celebrating the repeal of the California law, she and her fellow attorneys on the case called the law a potential “weapon … to punish doctors who dissented from mainstream views.”

    For his part, ABIM’s Baron says efforts to clarify what qualifies as acceptable advice are essential.

    “Just because we have areas of professional disagreement doesn’t mean there are no areas where we can say, ‘That’s just wrong.’ One doctor may recommend radiation for a cancer patient, and another may disagree, and that’s fine. But saying that magnets will cure cancer is just not a good faith difference of opinion,” he says.

    “There are things we know, and it’s important to hang onto that,” he adds. “Otherwise, we lose a huge aspect of the medical enterprise.”

    Taking doctors to task

    Doctors can — and do — get in trouble when their misinformation harms patients.

    One recourse for patients is a malpractice lawsuit. “There is no First Amendment defense against a malpractice claim. If you fall below the customary standard of care and harm occurs, you can be held liable,” says Haupt.

    For example, a Nevada family is pursuing a lawsuit arguing that their relative’s death can be linked to “falsehoods” promoted by the anti-vaccine group America’s Frontline Doctors and a breach of the standard of care by an affiliated physician. (The group and physician argue otherwise.)

    Also, both doctors and patients can file a complaint with the state medical licensing board if they believe a physician is causing harm.

    Between January 2020 and June 2023, COVID-related complaints were filed against at least 480 doctors, according to an analysis by The Washington Post. At least 20 physicians were penalized, and five lost their licenses.

    In Oregon, for example, one doctor had his license revoked in part because of several COVID-related concerns, including failing to wear a mask and not requiring his staff to wear masks in the clinic. The Oregon state medical board found that the doctor had informed patients that mask-wearing was toxic, and that it not only could exacerbate their asthma, COPD, and high blood pressure, but also lead to heart attacks and strokes. In revoking his license, the Oregon state medical board called his masking advice “counter to basic principles of epidemiology.”

    State boards face limits on what they can do, however. For one, the extent of potential oversight varies widely by state.

    “In some states, physicians can be disciplined for giving patients substandard guidance alone,” says Chaudhry. “In many states, though, they tell me their hands are tied because they need evidence of actual harm.”

    Boards also don’t proactively seek out problematic physician behavior, and instead rely on complaints they receive, including from patients or physicians’ peers. “Boards don’t know what they don’t know,” Chaudhry says.

    “In some states, physicians can be disciplined for giving patients substandard guidance alone. In many states, though, [state medical boards’] hands are tied because they need evidence of actual harm.”

    Humayun Chaudhry, DO
    Federation of State Medical Boards

    For her part, Haupt thinks boards ought to be able to sanction doctors for spreading misinformation on social media.

    “A good argument could be made that this would be consistent with the First Amendment when it’s under the rubric of licensing because licensing signals a provider’s knowledge and trustworthiness. So, if harm follows from substandard advice outside the direct provider-patient relationship, I believe an argument could be made in support of disciplinary action,” she says.

    But the recent legislative trend is actually moving in the opposite direction, away from boards’ ability to sanction providers.

    Nearly a dozen states have passed legislation limiting boards’ authority to discipline physicians for specific types of misconduct, says Chaudhry. And more than 100 other bills curtailing board action are under consideration in dozens of states, he adds. For example, four states currently prohibit medical boards from sanctioning doctors for prescribing ivermectin to treat COVID-19.

    That’s concerning for several reasons, experts say, including that taking ivermectin may prevent patients from pursuing effective COVID-19 treatments. Early in the pandemic, the medication — which is approved by the Food and Drug Administration to treat parasitic infections — looked like it also had antiviral properties in vitro. But later large-scale studies, including one conducted by Accelerating COVID-19 Therapeutic Interventions and Vaccines Study Group (ACTIV), found no such benefit.

    “[Bills limiting boards’ disciplinary authority] are dangerous to the public because board members are the ones with the qualifications to evaluate patient harm and standard of care,” says Chaudhry. “But if a state is considering one, we would ask that they work with their board to put together something sensible.”

    Meanwhile, state medical licensing boards aren’t the only institutions with some sway, experts say.

    For example, professional medical societies like the American Board of Internal Medicine (ABIM) are private, not government bodies, so they don’t face the same constraints as state licensing boards.

    “As a professional society, we set expectations for the physicians who seek our certification. If a doctor behaves in an unprofessional or unethical manner, such as spreading misinformation, we can revoke their certification,” says ABIM’s Baron. “We have more leeway.”

    “Frankly, the same thing goes for private hospitals, health systems, and medical schools,” he says.

    “We are all set up to act when we think people are behaving in unprofessional ways,” Baron adds. “We all have tools for doing that, and we should use them to protect the public and our patients.”