By Richard S. Saver. Full Text.
Physicians have played a surprisingly prominent role in the current “infodemic” of false and misleading medical claims. Yet, state medical boards, the governmental agencies responsible for professional licensure and oversight, have sanctioned remarkably few physicians. Pushing back against the widespread criticism of medical boards for insufficient action, this Article questions the overall suitability of licensure regulation to police medical misinformation. First, uncertainty exists about medical boards’ jurisdiction and legal authority. Many misinformation claims have involved physicians communicating publicly, not while treating patients. Given the primarily patient-centered legal and ethical frameworks governing the practice of medicine, serious challenges arise in making legally cognizable the wrongs arising from physicians, acting outside a doctor-patient relationship, spreading medical falsehoods to the community.
First Amendment barriers to restricting physician speech add further complications. To date, most scholarly commentary has focused on whether medical boards can navigate around constitutional concerns. The implicit assumption of much of this work is that, but for the First Amendment, the case for medical board intervention remains very strong. Taking a different approach, this Article delves deeper into additional limitations that, regardless of the First Amendment, cast considerable doubt on the prospects for optimal licensure regulation. Medical boards remain poorly designed for combatting physician-spread misinformation, suffering from professional bias in their composition, starved resources, time-consuming and reactive procedures, opacity, and insufficient institutional resilience and independence. Moreover, because of the difficulty in defining medical misinformation with precision, wide discretion is inevitably left to medical boards in targeting certain claims and particular physicians. This introduces serious risks that medical boards will inevitably overreach and conflate unorthodox, yet potentially innovative medical claims, with misinformation or exercise disciplinary powers for anti-competitive reasons.
Further advancing the literature, this Article also synthesizes data on disciplinary proceedings in the three largest states—California, Texas, and Florida—to provide a more comprehensive accounting of how medical boards are responding to physicians spreading COVID-19 misinformation.