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California Law to Punish Doctors for “Misinformation” About COVID

One problem is that a term like “scientific consensus” simply doesn’t apply to discussion of the evidence collected during the pandemic
With the global spread of the new coronavirus pneumonia, an automated line of disposable medical masks makes the masks ready for an epidemic 24 hours a day, COVID-19 outbreak

An article at MedPage Today supports the new California law against doctors providing “misinformation” about COVID-19:

California Governor Gavin Newsom signed legislation on Friday that gives the state some ammunition against physicians who spread lies about COVID in the context of direct patient care, although it won’t apply to those who spread such misinformation on social media.

It is said to be the first such law in the nation. Such misinformation — when it is “contradicted by contemporary scientific consensus contrary to the standard of care,” and delivered with “malicious intent or an intent to mislead” — now can be defined as “unprofessional conduct.”

Cheryl Clark, “California Bill Barring Docs From Telling COVID Lies Signed Into Law” at MedPage Today (October 1, 2022)

So the issue is doctors spreading ‘lies” to patients? Hold that thought. At City Journal, we hear a rather different assessment:

The most obvious problem with AB 2098 is the bill’s assumption that a term like “scientific consensus” is a specific enough guideline for tracking and punishing misinformation by medical professionals. This is a particular problem for topics relating to Covid-19; there may be consensus in a rough sense, but the finer details often remain contentious. For instance, N-95 masks seem to be the only type of facial covering that significantly reduces viral transmission, but health agencies, even when conceding the superiority of those masks, continue to promote broad public masking, even with inferior cloth masks, for unspecified reasons. One could argue that this falls under the vague notion of misinformation. Or take the use of coronavirus vaccines in children: vaccination may have been broadly beneficial, but the degree to which most children benefit is a topic of dispute, and health agencies’ insistence on younger and younger children receiving a shot has sparked concerns of significant side effects. A physician could run afoul of the state’s vague misinformation regulation merely by reviewing the nuances of pediatric vaccination with concerned parents.

Zach Caverley, “California’s Misbegotten Misinformation Bill” at City Journal (September 13, 2022)

The bill is quite likely to spark legal challenges. Here’s one reason why: Even by early 2021, it was quite clear, as various lists attest (see here, here and here to start), that much official proclamation on the topic was questionable and/or later revised. Presumably, a doctor who dissented from whatever was coming from official sources would, under the MedPage article’s interpretation of the California legislation, be deemed to be telling “lies.”

The world covered by a surgical mask from the Coronavirus pandemic. Covid-19 spreading in The Untited States. 2019-ncov infecting the planet Earth 3D rendering

That’s all the odder when you consider the recent communication the editors of the British Medical Journal sent to Mark Zuckerberg about the impact of Facebook’s efforts to censor reporting on the defects of vaccine trials:

We are Fiona Godlee and Kamran Abbasi, editors of The BMJ, one of the world’s oldest and most influential general medical journals. We are writing to raise serious concerns about the “fact checking” being undertaken by third party providers on behalf of Facebook/Meta.

In September, a former employee of Ventavia, a contract research company helping carry out the main Pfizer covid-19 vaccine trial, began providing The BMJ with dozens of internal company documents, photos, audio recordings, and emails. These materials revealed a host of poor clinical trial research practices occurring at Ventavia that could impact data integrity and patient safety. We also discovered that, despite receiving a direct complaint about these problems over a year ago, the FDA did not inspect Ventavia’s trial sites.

The BMJ commissioned an investigative reporter to write up the story for our journal. The article was published on 2 November, following legal review, external peer review and subject to The BMJ’s usual high level editorial oversight and review.[1]

But from November 10, readers began reporting a variety of problems when trying to share our article. Some reported being unable to share it. Many others reported having their posts flagged with a warning about “Missing context … Independent fact-checkers say this information could mislead people.” …

We find the “fact check” performed by Lead Stories to be inaccurate, incompetent and irresponsible. “BMJ 2021;375:n2635

So if even the British Medical Journal does not pass the fact checker’s test for Approved Certainties, what chance does an average physician whose clinical experience leads to doubt have?

Public health authorities are now trusted much less

One casualty of the COVID-19 years has been declining trust in public health advice. At Stat, we learn:

… the decrease in public trust for U.S. public health agencies during the pandemic — a poll indicates that only 52% of Americans trust the CDC, compared to 37% who trust the National Institutes of Health and the Food and Drug Administration — makes clear that public health needs a new philosophy for risk communication, and a new mantra to go with it.

Evan J. Zimmerman, “Want to improve trust in U.S. public health agencies? Start with a new mantra” at Stat (February 3, 2022)

The proposed new mantra, “Be right, be fast, be clear” is intended to replace “Be first, be right, be credible,” from earlier years. The trouble is, of course, one cannot become right just by aspiring to be.

The draconian public health authorities were often wrong but never in doubt. Even by early 2021, it was quite clear that much official proclamation on the topic was incorrect or questionable.

All that authoritarian crackdowns achieve in such a case is an end to open discussions. Predictably, public doubt is then often expressed by a tendency to lie about things:

At the height of the COVID-19 pandemic, more than 40% of Americans were untruthful about whether they had the virus or were ignoring safety precautions, a nationwide survey shows…

Folks ignored quarantine rules, told someone they were about to see that they had been taking more precautions than they actually were, and didn’t mention they might or did have COVID-19 when they entered a doctor’s office. They were also untruthful about vaccination status, claiming they were vaccinated when they weren’t or that they were unvaccinated when they had taken the jab, the survey revealed.

HealthDay News, “Many Americans lied about COVID-19 risk during pandemic, study shows” at UPI (October 10, 2022) The paper is open access.

Late last year, RealClearPolitics asked World Health Organization’s Lawrence Gostin about regaining public trust. He said the usual things and then, according to interviewer Sharryl Attkisson,

Gostin says the World Health Organization’s biggest flaw during Covid-19 might have been its failure or inability to independently verify China’s reporting about the virus.

Tim Hains, “WHO’s Lawrence Gostin: Will We Actually Trust In Science And Regain Our Trust In Public Health Agencies?” at RealClearPolitics (December 5, 2021)

Indeed. Americans who expressed doubt about the CCP’s version of events were branded as conspiracy theorists. That’s hardly a way to build public trust.

With California’s new type of legislation, the question becomes: Is public trust the real goal or is the real goal closer to information control and news management?

You may also wish to read: U.S. shuts down its paused Disinformation Governance Board Faced with resounding unpopularity, the Department of Homeland Security has decided that the Board is not necessary. While the reaction has been described as a “rightwing backlash,” it included pretty much anyone who did not want the government deciding what is “true.”

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California Law to Punish Doctors for “Misinformation” About COVID