Subjects doctors to board discipline and loss of licensure for providing COVID-19 advice or treatment outside of the so-called scientific consensus

State: CA
Bill Number: AB 2098
Position: OPPOSE
Action Required: NONE
Status: Enacted, signed by Governor 9/30/2022, effective 1/1/2023

Legislation Details:

UPDATE: 11/2/2022 - The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed a complaint and motion for a preliminary injunction in Høeg, et al. v. Newsom, et al. on November 2, 2022, asking the U.S. District Court for the Eastern District of California to prevent AB 2098 from going into effect. https://nclalegal.org/2022/11/doctors-sue-newsom-and-calif-medical-board-over-law-censoring-medical-advice/ 

UPDATE: 9/30-2022 - AB 2098 signed by Governor Newsom with an effective date of 1/1/2023. Click here to read his signing statement.  

In his statement, the Governor stated that he signed this bill because "it is narrowly tailored to apply only to those egregious instances in which a licensee is acting with malicious intent or clearly deviating from the required standard of care while interacting directly with a patient under their care." He continued: "COVID-19 treatment and care is rapidly evolving and this bill allows physicians to discuss both emerging and current treatments in a manner that is unique to each patient and their distinctive medical history." 

However, the language of the bill does not provide as much freedom to doctors as the Governor implies. Instead, it allows doctors to face the possibility of losing their license simply for sharing knowledge or advice which "is contradicted by contemporary scientific consensus contrary to the standard of care (called "misinformation" by the bill)."

AB 2098 causes government interference in the doctor-patient relationship. The provisions of this bill could result in a physicians being punished simply for doing what they believe is best for their patients and sharing legitimate information necessary for their patient to make a true risk/benefit analysis but those who want everyone vaccinated no matter what would consider to be "misinformation." The bill creates unnecessary and egregious governmental interference and regulation on health care professionals who undergo extensive training and education which gives them the knowledge and ability to act in the best interest of their individual patients, who have differing needs and concerns.

In short, this bill puts an unnecessary and threatening regulation on physicians, and stands in the way of patients receiving the best advice possible for their personal needs and concerns regarding COVID-19 vaccination. 

In addition, this news article by Kati Grimes published in the California Globe, Gov. Newsom Signs Bill to Censor CA Doctors Accused of ‘Spreading COVID Misinformation’ provides some good quotes questioning the constitutionality of AB 2098.  The bill will mostly likely see multiple legal challenges.  One lawsuit was already filed on Oct. 4, 2022, that seeks declaratory and injunctive relief for violation of First Amendment rights. https://libertyjusticecenter.org/wp-content/uploads/2022/10/2022-10-04-McDonald-v-Lawson-Complaint.pdf 

UPDATE: 9/12/2022 - AB 2098 enrolled and presented to the Governor at 4:00 PM. 

UPDATE: 9/1/2022 - The Assembly concurred with Senate amendments on AB 2098 in a 56-20-4 vote and was sent to enrolled on Sept. 1st.  The bill will go to the governor next. 

UPDATE: 8/29/2022 - AB 2098 passed on third reading in a 32-8-0 vote and ordered to Assembly for concurrence with Senate amendments.

UPDATE: 8/23/2022 - AB 2098 underwent second reading and ordered to third reading. 

UPDATE: 8/22/2022 - AB 2098 was amended on third reading. The amendment changed the definition of "misinformation" in the bill. See below for the current definition in the bill. 

Existing law requires California Medical Boards to take action against licensed physicians and surgeons who are charged with unprofessional conduct, which can result in these medical professionals losing their license to practice medicine. In its current form, AB 2098 states that it is unprofessional conduct for physicians or surgeons to share "misinformation or disinformation" regarding COVID-19, including "false or misleading information" related to the nature and risks of COVID-19, preventing and treating it, and the development, safety and effectiveness of COVID-19 vaccines.

"Disinformation" is defined in the bill as misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead. 

"Misinformation" is defined in the bill as false information that is contradicted by contemporary scientific consensus contrary to the standard of care.

Physicians for Informed Consent sent a letter to California legislators on 3/9/2022 in opposition to AB 2098. See below for two quotes from the letter:

"Without California doctors being free to speak their mind and educate the public, regarding COVID-19 or vaccination or any other controversial topic, no other public health laws will matter as legislators will not be able to obtain knowledge from a breadth of physician and surgeon opinions, and the public will not be able to obtain their doctors’ honest opinion—because doctors who think and act differently from the contemporary “applicable standard of care” will fear losing their medical license."

"Public health is not achieved, and scientific knowledge does not progress, by censoring dissenting physicians and surgeons or anyone else. AB 2098 is anti-doctor, anti-public health, anti-science, and anti-free speech and we urge you to oppose it."

UPDATE: 8/11/2022 - AB 2098 passed the Senate Appropriations Committee in a 5-2 vote, underwent second reading, and has been ordered to third reading in the Senate.

Existing law requires California Medical Boards to take action against licensed physicians and surgeons who are charged with unprofessional conduct, which can result in these medical professionals losing their license to practice medicine. In its current form, AB 2098 states that it is unprofessional conduct for physicians or surgeons to share "misinformation or disinformation" regarding COVID-19, including "false or misleading information" related to the nature and risks of COVID-19, preventing and treating it, and the development, safety and effectiveness of COVID-19 vaccines.

"Disinformation" is defined in the bill as misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead. 

"Misinformation" is defined in the bill as false information that is contradicted by contemporary scientific consensus to an extent where its dissemination constitutes gross negligence by the licensee.

UPDATE: 8/6/2022 - AB 2098 is scheduled for a hearing in the Senate Appropriations Committee on 8/11/2022. 

UPDATE: 8/1/2022 - AB 2098 was referred to the Senate Appropriations Committee Suspense File. Bills with a fiscal impact of $50,000 or more to the General Fund or $150,000 or more to special fund are referred to the Suspense File by the Committee following testimony at a regular hearing, and they may be voted out later on. Click here for more information about the Suspense File.

UPDATE:  6/29/2022 - AB 2098 is scheduled for a hearing in the Senate Appropriations Committee on Monday, August 1st, at 10:00 a.m., with a full committee agenda TBA.

UPDATE: 6/27/2022 - AB 2098 passed the Senate Business, Professions, and Economic Development Committee in a 9-4 vote, with 1 vote not recorded. The bill was referred to the Senate Appropriations Committee.

UPDATE: 6/22/2022 - AB 2098 was amended on 6/21/2022 to remove the section of the bill that required, prior to bringing a disciplinary action against a licensee the board shall consider both whether the license departed from the applicable standard of care and whether the misinformation or disinformation resulted in harm to the patient.  

(b)Prior to bringing a disciplinary action against a licensee under this section, the board shall consider both whether the licensee departed from the applicable standard of care and whether the misinformation or disinformation resulted in harm to patient health.  

The bill is still scheduled for a hearing on 6/27/2022. 

UPDATE:  6/15/2022 - AB 2098 is scheduled for a hearing in the Senate Business, Professions, and Economic Development Committee on Monday, June 27th at 12:00 PM and upon adjournment of Session, if necessary, at 1021 O Street, Room 1200. Agenda - https://sbp.senate.ca.gov/agenda

UPDATE: 6/8/2022 - AB 2098 referred to Senate Business, Professions, and Economic Development Committee

UPDATE: 5/26/2022 - AB 2098 passed the Assembly in a 53-20 vote and ordered to the Senate.

UPDATE: 5/12/2022 - AB 2098 read second time in the Assembly and ordered to third reading.

UPDATE: 5/11/2022 - AB 2098 passed the Assembly Appropriations Committee in a 12-4 vote.

UPDATE:  5/7/2022 - AB 2098 is scheduled for a hearing in the Assembly Appropriations Committee on Wednesday, May 11th at 9:00 AM at 1021 O Street in Room 1100. Agenda - https://apro.assembly.ca.gov/hearings

UPDATE: 4/19/2022 - AB 2098 was amended and passed by the Assembly Business and Professions Committee, and was re-referred to the Assembly Appropriations Committee. The amended version does the following:

-Updates COVID-19 statistics in the legislative findings in Section 1 of the bill 

-Deletes the struck-through language below and replaces it with the italicized language:

(a) It shall constitute unprofessional conduct for a physician and surgeon to disseminate or promote misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.

(b) The board shall consider the following factors prior to bringing a disciplinary action against a licensee under this section:

(1) Whether the licensee deviated from the applicable standard of care.

(2) Whether the licensee intended to mislead or acted with malicious intent.

(3) Whether the misinformation or disinformation was demonstrated to have resulted in an individual declining opportunities for COVID-19 prevention or treatment that was not justified by the individual’s medical history or condition. 

(4) Whether the misinformation or disinformation was contradicted by contemporary scientific consensus to an extent where its dissemination constitutes gross negligence by the licensee.

(b) Prior to bringing a disciplinary action against a licensee under this section, the board shall consider both whether the licensee departed from the applicable standard of care and whether the misinformation or disinformation resulted in harm to patient health.

- Adds definitions for certain terms: 

"Misinformation" means false information that is contradicted by contemporary scientific consensus to an extent where its dissemination constitutes gross negligence by the licensee.

"Disinformation" means misinformation that the licensee deliberately disseminated with malicious intent or an intent to mislead.

"Disseminate" means the conveyance of information from the licensee to a patient under the licensee’s care in the form of treatment or advice.

-Adds a severability clause (this means that if one provision in the bill is repealed, the others will remain).

 

NVIC Advocacy still strongly opposes this bill, because it is an attempt to interfere in the physician-patient relationship, especially when there is so much information available questioning the necessity or effectiveness of COVID-19 vaccines. 

UPDATE: 3/23/2022 - AB 2098 is scheduled for a hearing in the Assembly Business and Professions Committee on Tuesday, April 19th at 9:00 AM in Room 1100, 1021 O Street. 

The Assembly Business and Professions Committee position letter submission deadline is 5:00 PM, eight days before a hearing. Click here to visit the committee page and submit a position letter using the link provided on the right side of the page. 

UPDATE: 2/24/2022 - AB 2098 was referred to the Assembly Committee on Business and Professions.

AB 2098 was introduced on 2/14/2022.   This bill is sponsored by Assembly Member Low with Coauthors: Assembly Members Aguiar-Curry, Akilah Weber, and Wicks Senators Pan and Wiener. 

This bill would add the following new Section 2270 in the Business and Professions Code, to read:

(a) It shall constitute unprofessional conduct for a physician and surgeon to disseminate or promote misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.

(b) The board shall consider the following factors prior to bringing a disciplinary action against a licensee under this section:

(1) Whether the licensee deviated from the applicable standard of care.

(2) Whether the licensee intended to mislead or acted with malicious intent.

(3) Whether the misinformation or disinformation was demonstrated to have resulted in an individual declining opportunities for COVID-19 prevention or treatment that was not justified by the individual’s medical history or condition. 

(4) Whether the misinformation or disinformation was contradicted by contemporary scientific consensus to an extent where its dissemination constitutes gross negligence by the licensee.

(c) For purposes of this section, the following definitions shall apply:

(1) “Physician and surgeon” means person licensed by the Medical Board of California or the Osteopathic Medical Board of California under Chapter 5 (commencing with Section 2000).

(2) ”Board” means the Medical Board of California or the Osteopathic Medical Board of California, as applicable.

(d) Section 2314 shall not apply to this section.

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB2098 - text, status and history for AB 2098