Is Bad Medical Advice Protected By The First Amendment?


Is Bad Medical Advice Protected By The First Amendment?


Leonard Zwelling

You probably already know where this is going. California, of course.

As reported by Steven Lee Myers in The New York Times on December 1, Governor Gavin Newsome has signed into a law, a bill that would penalize doctors for spreading false information about Covid-19 vaccines and treatments. It goes without saying that the law is being challenged in court as being both unconstitutional and infringing the ability of doctors to practice medicine, an activity regulated by the California Board of Medical Examiners.

The law was putatively written “narrowly in hopes of avoiding First Amendment entanglements” and leaving penalties to be meted out by the California board. That could mean a doctor could lose his or her license for trying to talk a young, healthy male out of getting the Covid vaccine due to the risk of heart complications. Interestingly enough, it was the California Medical Association that sponsored the bill and it is five doctors who are challenging the laws legality.

Of course, the advocates of the bill (now law) say it “was needed to protect patients from doctors who had fueled skepticism about vaccines and mask mandates or encouraged the use of drugs like ivermectin and hydroxychloroquine.” The plaintiffs insist that the laws wording suggests “falsehoods that violate contemporary scientific consensus” are stifling “doctors’ abilities to advise patients honestly about the pros and cons of Covid-19 treatment and practices.”

It has got to be a bad idea to leave what is and what is not good medicine in the hands of state legislatures. Furthermore, the use of ivermectin and hydroxychloroquine to treat Covid, while a bad idea, cannot really be made illegal by a state if the drugs are FDA approved and the prescriber is a licensed physician—if the drug is approved for human use. Off-label drug use may sometimes be bad medicine, but it cannot be illegal. Imagine what that would do to the practice of oncology. Sure, it is best if new therapies or even new uses of already approved therapies are tested in clinical trials, but we really can’t have legislators deciding what is and is not good medicine.

This seems to me one of those areas where administrators and politicians ought to recuse themselves. This is also true of recent more local decisions to call readmission thirty days after a hospitalization or the administration of chemo- or immune-therapy within two weeks of death as poor-quality care in a cancer center. Sometimes that may be true. Sometimes, it may not be.

These are very complicated medical decisions that ought to be left in the hands of physicians and their patients. If a doctor thinks something unusual might help a patient and that doctor informs the patient of the known risks and possible benefits in an objective and scientific fashion, then that therapy ought to be able to move forward legally. It is why patients come to doctors and especially why patients come to MD Anderson. They want to be treated and they want their condition to improve.

The other issue here is that the state of scientific knowledge is always in flux. New treatments for diseases are discovered weekly. The FDA cannot keep up with all the applications to have a new therapy approved and even when it does, the decisions are often quite controversial suggesting that the science is not all that clear.

Let’s leave state legislatures out of the practice of medicine. As much as I believe that ivermectin and hydroxychloroquine don’t work in Covid patients, others differ in their opinions despite the most recent findings that these drugs appear to be ineffective.

Making laws to restrict the speech of licensed physicians is ludicrous, but, of course, it did occur in California. Here in Texas, they allow people to sue social media companies for taking down politically-charged speech. Are Texas and California in the same country?

Information has become ever more politically-charged and far more widely disseminated due to the Internet. That’s reality whether we like it or not. It is going to be very hard to put that lightning back in the bottle. In the end it will be up to the individual to vet all information—medical or political—for himself. And when it comes to medicine, try to find a trustworthy doctor, if you can determine how to do it.

You can try Yelp, but the other way is to ask people you trust and then ask why a doctor is good. Just because his office staff is nice, does not make him good. It’s not how she makes your emotions feel as much as how she makes you feel when you are ill. Everyone wants both—Marcus Welby and Michael Debakey. Both are getting harder to find.

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