Court Refuses to Block California Ban on COVID “Treatment or Advice” That’s “Contrary to the Standard of Care”
California’s recently enacted AB 2098 bars doctors from providing “treatment or advice” “to a patient” “related to COVID-19” when that treatment or advice includes (1) “false information” (2) “that is contradicted by contemporary scientific consensus” (3) “contrary to the standard of care.” The law makes such treatment or advice “unprofessional conduct,” for which doctors can be disciplined by disciplinary authorities. The law is limited to speech to particular patients; it doesn’t apply to speech to the public at large.
Yesterday’s decision by Judge Fred Slaughter (C.D. Cal.) in McDonald v. Lawson held that this statute was likely constitutional, on the grounds that it fits within the traditional regulation of doctors’ professional conduct:
[California law has long] permitted licenses to be refused or revoked for unprofessional conduct. California courts have found such “unprofessional conduct” to include, in some circumstances, a medical practitioner’s speech to patients. See, e.g., Fuller v. Bd. of Med. Exam’rs, 14 Cal. App. 2d 734, 740-41 (1936), abrogated on other grounds as recognized by Hughes v. Bd. of Architectural Exam’rs, 17 Cal. 4th 763, 784-85 (1998) (upholding sanctions on physician charged with unprofessional conduct who made false claims about his ability to treat hernias)….
More generally, “gross negligence,” “repeated negligent acts,” and “incompetence” are included in the [existing] definition of “unprofessional conduct.” Under California law, “gross negligence” is defined as “the want of even scant care or an extreme departure from the ordinary standard of conduct”; “negligence” is a “simple departure” from the current standard of care; and the “term incompetency generally indicates an absence of qualification, ability or fitness to perform a prescribed duty or function.” The “standard of care” for medical practitioners is the reasonable degree of skill, knowledge, and care as that of practitioners under similar circumstances….
By its terms, AB 2098 applies to physicians and surgeons licensed in California. The measure’s definition of “misinf
Article from Reason.com
