Government vs. Medicine It Could Be a Slippery Slope

FEATURE

Government vs. Medicine

It Could Be a Slippery Slope

By Karen L. Chandler

Recent political moves will have governments weighing in on what treatments physicians can choose for their patients. And while there are legislators who are licensed physicians, the majority are not. To counteract misinformation believed to be spread by some physicians and exacerbated by the media, the Tennessee State Board of Medical Examiners adopted a policy to penalize physicians who speak out with false information about COVID-19 vaccines and treatments. These doctors could face a potential loss of their licenses to practice. Despite the support of the policy by the American Board of Internal Medicine, the Federation of State Medical Boards, and others, the state of Tennessee took a different stance. Only months after the September 2021 policy to tighten the reins on physicians was put in place, Tennessee legislators voted to stop the licensing board from punishing licensed physicians in regard to their choices of COVID-19 treatments and required the policy to be removed. Following Tennessee’s lead, North Dakota passed a similar law and 24 more states on both sides of the aisle are considering the same path. And Pennsylvania is included in the mix. Dr. Humayun Chaudhry, CEO of the Federation of State Medical Boards (FSMB), called the decisions and considerations an “unwelcome trend.” He added, “at the end of the day, if a physician who is licensed engages in activity that causes harm, the state medical boards are the ones that historically have been set up to look into the situation and make a judgement about what happened or didn’t happen.” In December 2021, the FSMB reported findings from its 2021 annual survey of state medical boards, with the survey’s focus identifying how the boards are impacted by and dealing with health care professionals who spread false or misleading details about COVID-19. The survey revealed 67% of boards experienced an increase in complaints about licensed physicians disseminating false or misleading information. 26% have provided statements regarding the dissemination of the misinformation, while 21% have actually taken disciplinary action against a licensee who actually spread COVID-19 misinformation. The Tennessean reports that Dr. Melanie Blake, Tennessee Medical Board president, spoke out about the legislation in September 2021. She said, “You don’t get to use your Tennessee state medical license in order to promote a platform just spewing medical misinformation to your patients. I think we have an ethical obligation to investigate it and stop it and I think the citizens of our state expect nothing less.” Called the “Tennessee COVID-19 Treatment Freedom Act,” the bill prevents the Tennessee Board of Medical Examiners from disciplining doctors for anything “solely related to the physician’s prescription, recommendation, use, or opinion relative to a treatment for COVID-19,” to include treatments that have not been approved by the state’s health department or the FDA. The bill’s author, State Representative Chris Todd, defends his position to MedPage Today by saying “doctors in this state have been handed an unconstitutional ultimatum from a board that has repeatedly exceeded its legal authority. As representatives of the people, we must do everything in our power to rein in this abuse and restore the liberties and freedoms our physicians are guaranteed under our constitution.” Todd added, “my bill does that, but it also guarantees the ability for doctors to practice as they are licensed and trained for treatment of COVID-19 just like any other illnesses they treat on a regular basis. We’ve never seen restrictions on physicians like we have in the last 18 months.” The Tennessean also reports that Dr. Stephen Loyd of the Board of Medical Examiners reviewed Todd’s bill and expressed that as written it would not have a great impact on the board whose goal is only to fight the spread of provably false information. But Loyd did agree that the bill may create a path for physicians to argue that their false claims were actually opinions and thereby protected by the new law. In Pennsylvania, a similar bill that would allow physicians to veer from the guidelines was put in place by the Centers for Disease Control and Prevention for their COVID-19 treatments. State Representative Dawn Keefer (R-York), the bill’s author and secretary of the House Health Committee, said, “I am advocating for treatment, period, for patients’ right to try, these patients who are being told in the hospital there’s nothing else we can do for them. Why not a Hail Mary?” Further complicating an already complex situation was revealed in Politico with an explanation by Chaudry. “Legal structures developed for the 20th century are, in many states, not suited to discipline doctors who broadcast misinformation on social media because the physicians are not directly treating patients,” Chaudry said. “So, some boards – and other regulators that license providers and the non-profits that certify physicians for their expertise – feel uncertain about disciplining such doctors, even though they might be contributing to lagging vaccination rates.” Chaudry remains concerned by legislators’ attempts to halt oversight of medical professionals. “And if you start to chip away at that, it becomes a slippery slope.” •