Less than 1% of all state medical-board disciplinary actions against physicians in the five most populous US states were for spreading misinformation about topics such as vaccines and therapies during the COVID-19 pandemic, compared with 29% for negligence, according to an analysis from the University of North Carolina (UNC) School of Law.
Yet two public health experts argue that, because of First Amendment rights and other factors, that's how it should be.
Boards in California, Florida, New York, Pennsylvania, Texas studied
Starting in January 2020, the study analyzed and coded medical-board website data on 3,128 disciplinary proceedings against physicians accused of 6,655 common infractions in Texas through March 2022 and in California, Florida, New York, and Pennsylvania through May 2023.
Considerable uncertainty remains about how the licensure system polices misinformation.
The results were published yesterday in JAMA Network Open.
"False medical information disseminated widely during the COVID-19 pandemic," noted study author Richard Saver, JD. "Surprisingly, some physicians played a notable role, ranging from discrediting vaccination to promoting ineffective treatments."
Despite experts urging medical boards to crack down on physicians spreading lies, few disciplinary actions resulted, and widespread criticism ensued. "Yet considerable uncertainty remains about how the licensure system polices misinformation," he wrote.
Least common reason for sanctions
Spreading medical misinformation to the community was the least common reason for medical board discipline, at 0.1%, followed by interactions with patients involving COVID-19 but not false information (0.2%) and false patient-directed claims and inappropriate advertising or patient solicitation, which were tied at 0.3%.
Disciplinary action for misinformation conduct was vastly less common than that for infractions such as physician negligence (28.7%), problematic record-keeping (14.9%), inappropriate prescribing (13.5%), and criminal activity (9.0%).
In today's digital age, when a single physician spreading misinformation can influence thousands of people, our regulatory framework may need to evolve.
When sanctions were given, they were relatively nonconsequential (eg, issuing a public letter of reprimand, placing the physician's license on probationary status). No disciplinary actions for spreading misinformation resulted in license revocation, although a physician in California surrendered his or her license after an investigation was instigated.
No New York physicians were disciplined for any misinformation offenses, and no Florida or Pennsylvania physicians were penalized for misinforming the public.
"Even within the small number of actions involving misinformation, the data shows that boards are far more comfortable disciplining physicians for misconduct involving direct patient care than addressing erroneous public statements," Saver said in a UNC news release. "Yet false public communications may cause wider harm."
"These findings suggest a serious disconnect between regulatory guidance and enforcement and call into question the suitability of licensure regulation for combatting physician-spread misinformation," he noted in the study. "In today's digital age, when a single physician spreading misinformation can influence thousands of people, our regulatory framework may need to evolve," he added in the release.
Sanctions threaten free speech, commentators say
In a related commentary, Megan Ranney, MD, MPH, of the Yale University School of Public Health, and Lawrence Gostin, JD, of the Georgetown University Law Center, warn against Saver's approach, noting that the First Amendment protects freedom of speech and bars governmental organizations such as state medical boards from interfering with that right.
Medical board sanctions should not supplant proactive support for accurate health information.
"Moreover, it can be difficult to discern when a licensed professional is speaking in his or her official or private capacity," they wrote. "Social media posts, for example, may reflect a physician's personal views that warrant robust constitutional protection."
Therefore, they propose that medical board sanctions should be rare and used only if physicians consistently and egregiously spread verifiably false information with demonstrated potential for harm in their professional capacity. And that, they said, may be best left to regulatory agencies such as the Food and Drug Administration or the Federal Trade Commission.
"Finally, medical board sanctions should not supplant proactive support for accurate health information," Ranney and Gostin wrote. "We all have a role to play in improving the quality and reliability of health communication."
