Before any Tennessee physicians could be reprimanded for spreading falsehoods about COVID-19 vaccines or treatments, Republican lawmakers threatened to disband the medical board.
This article was published on Tuesday, February 15, 2022 in Kaiser Health News.
Tennessee's Board of Medical Examiners unanimously adopted in September a statement that said doctors spreading COVID misinformation — such as suggesting that vaccines contain microchips — could jeopardize their license to practice.
"I'm very glad that we're taking this step," Dr. Stephen Loyd, the panel's vice president, said at the time. "If you're spreading this willful misinformation, for me it's going to be really hard to do anything other than put you on probation or take your license for a year. There has to be a message sent for this. It's not OK."
The board's statement was posted on a government website.
But before any physicians could be reprimanded for spreading falsehoods about COVID-19 vaccines or treatments, Republican lawmakers threatened to disband the medical board.
The growing tension in Tennessee between conservative lawmakers and the state's medical board may be the most prominent example in the country. But the Federation of State Medical Boards, which created the language adopted by at least 15 state boards, is tracking legislation introduced by Republicans in at least 14 states that would restrict a medical board's authority to discipline doctors for their advice on COVID.
Dr. Humayun Chaudhry, the federation's CEO, called it "an unwelcome trend." The nonprofit association, based in Euless, Texas, says the statement is merely a COVID-specific restatement of an existing rule: that doctors who engage in behavior that puts patients at risk could face disciplinary action.
Although doctors have leeway to decide which treatments to provide, the medical boards that oversee them have broad authority over licensing. Often, doctors are investigated for violating guidelines on prescribing high-powered drugs. But physicians are sometimes punished for other "unprofessional conduct." In 2013, Tennessee's board fined U.S. Rep. Scott DesJarlais for separately having sexual relations with two female patients more than a decade earlier.
Still, stopping doctors from sharing unsound medical advice has proved challenging. Even defining misinformation has been difficult. And during the pandemic, resistance from some state legislatures is complicating the effort.
A relatively small group of physicians peddle COVID misinformation, but many of them associate with America's Frontline Doctors. Its founder, Dr. Simone Gold, has claimed patients are dying from COVID treatments, not the virus itself. Dr. Sherri Tenpenny said in a legislative hearing in Ohio that the COVID vaccine could magnetize patients. Dr. Stella Immanuel has pushed hydroxychloroquine as a COVID cure in Texas, although clinical trials showed that it had no benefit. None of them agreed to requests for comment.
The Texas Medical Board fined Immanuel $500 for not informing a patient of the risks associated with using hydroxychloroquine as an off-label COVID treatment.
In Tennessee, state lawmakers called a special legislative session in October to address COVID restrictions, and Republican Gov. Bill Lee signed a sweeping package of bills that push back against pandemic rules. One included language directed at the medical board's recent COVID policy statement, making it more difficult for the panel to investigate complaints about physicians' advice on COVID vaccines or treatments.
In November, Republican state Rep. John Ragan sent the medical board a letter demanding that the statement be deleted from the state's website. Ragan leads a legislative panel that had raised the prospect of defunding the state's health department over its promotion of COVID vaccines to teens.
Among his demands, Ragan listed 20 questions he wanted the medical board to answer in writing, including why the misinformation "policy" was proposed nearly two years into the pandemic, which scholars would determine what constitutes misinformation, and how was the "policy" not an infringement on the doctor-patient relationship.
"If you fail to act promptly, your organization will be required to appear before the Joint Government Operations Committee to explain your inaction," Ragan wrote in the letter, obtained by KHN and Nashville Public Radio.
In response to a request for comment, Ragan said that "any executive agency, including Board of Medical Examiners, that refuses to follow the law is subject to dissolution."
He set a deadline of Dec. 7.
In Florida, a Republican-sponsored bill making its way through the state legislature proposes to ban medical boards from revoking or threatening to revoke doctors' licenses for what they say unless "direct physical harm" of a patient occurred. If the publicized complaint can't be proved, the board could owe a doctor up to $1.5 million in damages.
Although Florida's medical board has not adopted the Federation of State Medical Boards' COVID misinformation statement, the panel has considered misinformation complaints against physicians, including the state's surgeon general, Dr. Joseph Ladapo.
Chaudhry said he's surprised just how many COVID-related complaints are being filed across the country. Often, boards do not publicize investigations before a violation of ethics or standards is confirmed. But in response to a survey by the federation in late 2021, two-thirds of state boards reported an increase in misinformation complaints. And the federation said 12 boards had taken action against a licensed physician.
"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 judgment about what happened or didn't happen," Chaudhry said. "And if you start to chip away at that, it becomes a slippery slope."
The Georgia Composite Medical Board adopted a version of the federation's misinformation guidance in early November and has been receiving 10 to 20 complaints each month, said Dr. Debi Dalton, the chairperson. Two months in, no one had been sanctioned.
Dalton said that even putting out a misinformation policy leaves some "gray" area. Generally, physicians are expected to follow the "consensus," rather than "the newest information that pops up on social media," she said.
"We expect physicians to think ethically, professionally, and with the safety of patients in mind," Dalton said.
A few physician groups are resisting attempts to root out misinformation, including the Association of American Physicians and Surgeons, known for its stands against government regulation.
Some medical boards have opted against taking a public stand against misinformation.
The Alabama Board of Medical Examiners discussed signing on to the federation's statement, according to the minutes from an October meeting. But after debating the potential legal ramifications in a private executive session, the board opted not to act.
In Tennessee, the Board of Medical Examiners met on the day Ragan had set as the deadline and voted to remove the misinformation statement from its website to avoid being called into a legislative hearing. But then, in late January, the board decided to stick with the policy — although it did not republish the statement online immediately — and more specifically defined misinformation, calling it "content that is false, inaccurate or misleading, even if spread unintentionally."
Board members acknowledged they would likely get more pushback from lawmakers but said they wanted to protect their profession from interference.
"Doctors who are putting forth good evidence-based medicine deserve the protection of this board so they can actually say, 'Hey, I'm in line with this guideline, and this is a source of truth,'" said Dr. Melanie Blake, the board's president. "We should be a source of truth."
The medical board was looking into nearly 30 open complaints related to COVID when its misinformation statement came down from its website. As of early February, no Tennessee physician had faced disciplinary action.
“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 judgment about what happened or didn't happen. And if you start to chip away at that, it becomes a slippery slope.”
Humayun Chaudhry, MD, CEO, Federation of State Medical Boards
Kaiser Health News is a national health policy news service that is part of the nonpartisan Henry J. Kaiser Family Foundation.
The growing tension in Tennessee between conservative lawmakers and the state's medical board may be the most prominent example in the country.
But the Federation of State Medical Boards is tracking legislation introduced by Republicans in at least 14 states that would restrict a medical board's authority to discipline doctors for their advice on COVID.
Stopping doctors from sharing unsound medical advice has proved challenging. Even defining misinformation has been difficult. And during the pandemic, resistance from some state legislatures is complicating the effort.