Document Type
Article
Publication Title
Tennessee Law Review
Publication Date
2023
Abstract
The COVID-19 pandemic affected nearly every aspect of life in the United States, including most notably, work-life, home-life, and community-life. During the pandemic, the government took extraordinary steps to try and reduce the spread of the disease by closing businesses, mandating the wearing of masks, and requiring vaccines. Government officials repeatedly justified their actions by stating that they were "following the science." However not all members of the scientific/medical community agreed with these actions. Some of these counter-consensus opinions were labeled mis/dis/mal/information.
As the COVID-19 pandemic dragged on, calls to punish doctors for COVID-19 misinformation increased. Some doctors who claimed that mask mandates were ineffective or that the vaccines did not prevent COVID-19 infections or who recommended the use of alternative methods to treat COVID-19 found themselves facing disciplinary investigations. For example, California enacted a law specifically authorizing the state medical licensing board to punish doctors for providing "COVID-19 misinformation" in the context of the doctor patient relationship. Efforts to punish doctors for their counter consensus opinions raise several fundamental questions: What restrictions can state medical licensing boards place on doctors' counter-consensus speech? When doctors make statements in the public square about medical controversies are their First Amendment rights different than other citizens? What is the best way to counter incorrect medical information?
Most would likely agree that doctors who make false statements for profit or recklessly provide inaccurate medical advice to patients should be subject to punishment. However, scientific and medical understanding of the COVID-19 virus and how to combat it was in constant flux. Further, scientific consensus appears to have been driven by opinions coming from the Centers for Disease Control, the Food and Drug Administration, and the National Institutes of Health which suggests an intertwining of politics and medicine. The government agencies tasked with recommending how to combat the pandemic were also the primary sources of medical and scientific truth regarding the pandemic.
This article recommends caution and moderation when disciplining doctors for counter-consensus COVID-19 opinions. First, doctors should not be punished for public statements made outside of the context of the doctor-patient relationship. Punishing doctors for otherwise protected constitutional activity not only infringes on their right to free speech, but also potentially damages the public's trust in the medical community and governmental public health agencies. The better path to successfully combatting inaccurate physician information is with accurate physician information. The truth has ever been more convincing than that which is not true. Second, in the context of the doctor-patient relationship, states, hospitals, and medical associations have an obligation to protect patients and hold doctors to the appropriate medical standards. Thus, doctors can and should be disciplined when they violate their professional obligations while giving advice to patients.
This article recommends, however, caution when disciplining doctors for the advice they give to patients regarding COVID-19. As mentioned, the scientific and medical communities' understanding of COVID-19 has evolved. Opinions that were once thought to be misinformation are now more broadly accepted as true or possibly true. This article recommends an approach to disciplining doctors that analyzes four components related to medical advice or treatment: 1) harmfulness; 2) the presence of fraud, misrepresentation, or coercion; 3) whether there was full and complete informed consent; and 4) did the doctor display the degree of skill and learning employed by a reasonable doctor in a similar circumstance. By analyzing these four elements, doctors who offer earnest, well researched, counter consensus medical advice will avoid discipline, while negligent doctors, offering dangerous and scientifically unsupported opinions will be held accountable.
Recommended Citation
Timothy MacDonnell, Disciplining Doctors: A Call for Caution When Responding to Physicians' Counter-Consensus Speech in the Time of COVID-19, 90 Tenn. L. Rev. 865 (2023).