Should We Punish Physicians Who Spread Covid-19 ‘Misinformation’?

Healthcare Should We Punish Physicians Who Spread Covid-19 ‘Misinformation’? Paul Hsieh Contributor Opinions expressed by Forbes Contributors are their own. I cover health care and economics from a free-market perspective. New! Follow this author to improve your content experience.

Got it! Jul 25, 2022, 08:15am EDT | New! Click on the conversation bubble to join the conversation Got it! Share to Facebook Share to Twitter Share to Linkedin In recent weeks, I’ve seen growing calls to penalize physicians who spread “misinformation” — particularly regarding Covid-19 policy. For example, BMJ ( British Medical Journal ) published a debate, “ Should spreading anti-vaccine misinformation be criminalised? ” with commentary on both sides of the issue. In JAMA Health Forum , Stanford law professor Michelle Mello asked, “If officials may ban false advertising to prevent people from ingesting unsafe, unproven treatments, why can they not also ban false statements to prevent people from forgoing safe, proven vaccines?” Mello cited statistics claiming that misinformation has resulted in “an estimated 1200 excess hospitalizations and 300 deaths per day,” and she proposed legal penalties for “reckless” dissemination of misinformation “that materially influences people’s vaccination decisions.

” The American Medical Association recently passed a resolution urging state medical licensing boards to “take disciplinary action against health professionals for spreading health-related disinformation. ” (As of February 2022, 8 physicians in various states have had their medical licenses suspended or revoked “for spreading coronavirus-related misinformation. ”) In the New England Journal of Medicine , Dr.

Richard Baron and Dr. Yul Enjes argued that private certification boards (such as the American Board of Internal Medicine) should revoke certifications of physicians spreading misinformation on the grounds that “providing misinformation about a lethal disease is unethical, unprofessional and dangerous” and “constitutes grounds for disciplinary sanctions. ” (Board certification is separate from state government medical licensure.

Although many health care organizations require board certification as a requirement for employment or holding hospital staff privileges, board certification is not legally required to practice medicine in the U. S. ) A physician in handcuffs, for criminal misuse of a medical license.

getty MORE FOR YOU CDC: Salmonella Outbreak Has Left 279 Ill, 26 Hospitalized In 29 States Canadians End Up In ICU After Attending ‘Covid Party’ White House Mandates Pfizer Vaccines for Millions of Citizens . . .

Before the FDA Clinical or Safety Reviews Have Been Made Public One commonly cited argument in support of banning “misinformation” is that physicians hold a position of trust amongst the public. Hence, medical and government authorities must protect that trust by punishing physicians who spread falsehoods. However, Jonas Sivelä of the Finnish Institute for Health and Welfare warns that attempts to censor bad ideas could backfire .

He notes, “Hegemonic legislation that could be seen as criminalising the right to express legitimate worries or pose questions would only trigger more misinformation. ” In other words, if medical or government authorities are viewed by the public as too-quickly stifling opposing views, many people might choose to reject the legitimacy of the authorities rather than rejecting the supposed misinformation — thus paradoxically degrading the very trust the authorities seek to protect. Proponents of penalizing “misinformation” also recognize the potential conflict with principles of free speech.

Baron and Enjes noted that “professional speech” is a “legally contested domain between speech that can be regulated or prohibited by licensing boards and speech protected by the First Amendment. ” Similarly, Stanford professor Mello acknowledged “there is a risk of suppressing speech that ultimately proves to be truthful, and of chilling discourse by making people worry about whether they can back up their claims. ” I strongly agree with Mello’s concern about suppressing seemingly bad ideas that ultimately prove to be truthful.

One good example has been in our evolving (and still-evolving) understanding of the role of dietary fat in obesity and heart disease. For many years, dietary fat has been demonized as a major cause of obesity and heart disease. Physicians and medical organizations routinely advised patients to “cut down on fat.

” But more recently, scientists and physicians have recognized that the situation is more complicated. As Dr. Aaron Carroll , professor of pediatrics at the Indiana University School of Medicine, wrote: “Fat consumption does not cause weight gain.

To the contrary, it might actually help us shed a few pounds. ” Instead, sugars and refined carbohydrates are more likely the major dietary contributor to obesity. Similarly, a relatively recent paper in the Lancet has shown that, “High carbohydrate intake was associated with higher risk of total [cardiovascular disease] mortality, whereas total fat and individual types of fat were related to lower total mortality” and “Global dietary guidelines should be reconsidered in light of these findings.

” (There is a debate over the extent to which the sugar industry did or did not sponsor biased research to “ shift the blame to fat ” for causing heart disease, including this major review article in the New England Journal of Medicine . However, a full discussion of this topic beyond the scope of this piece. ) What if today’s proposed regulations about “misinformation” had been in place 25 years ago? A physician who dared challenge then-conventional dietary wisdom and argued, “It’s ok to eat bacon and other animal fats; you won’t worsen your risk of heart disease” could have been punished for spreading dangerous misinformation.

I’m glad such a disciplinary regime was not in place at the time. Seton Hall law professor Carl Coleman summarized this issue nicely in a recent article in Health Affairs : “The history of medicine contains numerous examples of once-accepted medical standards that were ultimately shown to be ineffective or harmful. If physicians could not publicly challenge medical orthodoxy without risking disciplinary action, legitimate critiques of prevailing practices might never be made.

” Coleman thus recommends state agencies be “extremely careful” in revoking physician licenses, and “only if they have a substantial body of unambiguous evidence refuting the physician’s views. ” I am not a lawyer and am not qualified to discuss the nuances of First Amendment law. But in my capacity as a patient who has sought medical advice for myself and for loved ones over the years, I would much rather that my physician feel free to offer his or her best medical advice without fear of prosecution or discipline — even if it means another doctor across town might be posting complete hogwash on their social media page.

I am always free to take or leave the advice of either (or both) doctors. But I am best able to make a fully informed decision for myself when both of those physicians are free to speak without fear of prosecution or disciplinary action. As former Supreme Court Justice Anthony Kennedy once said , “The remedy for speech that is false is speech that is true.

” This is not to say that physicians should be able to practice bad medicine without consequences. If a doctor administers a bogus concoction as an alleged cure for Covid-19 that is outside the “standard of care,” and his treatment causes provable harm to the patient, then the patient and/or their family can sue for malpractice. But when it comes to offering dissenting opinions — even mistaken opinions — on health-related public policy, I favor keeping the hand of government regulation relatively light rather than overly heavy, following the guidelines suggested by Coleman .

(I am more sympathetic to allowing private non-government certifying boards the latitude to set their own standards and requirements for membership. ) There’s an old principle in American law that it is better to let ten guilty people go free than to unjustly jail one innocent person. We uphold this principle, even knowing that there is a chance that one of the criminals left free might do real harm to others.

Similarly, I would much rather ten physicians be left free to express questionable opinions, rather than unjustly punish one physician for speaking a currently-unpopular truth. When it comes to matters of health policy, let physicians speak freely and let patients decide whom to believe. Check out my website .

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