When physicians spread medical misinformation, the potential harm to health is far greater than their direct patient care. And yet, in a recent study, medical boards rarely discipline physicians for spreading misinformation.
The JAMA article looked at 3128 medical board disciplinary proceedings involving physicians. Spreading misinformation to the community was the least common reason, at 0.1%. Direct patient misinformation and inappropriate advertising were tied for the next two least common reasons at 0.3%. This is an order of magnitude or more less than other causes for disciplinary action.
The limitation of this study is that we do not know what the incidence of spreading misinformation is. We also don’t know how many complaints are raised that do not result in disciplinary actions, because pending or dismissed cases are confidential and not made public. But, the authors write, there is evidence that such complaints are on the rise:
“The FSMB reported in December 2021 that about two-thirds of medical boards had seen an increase in complaints about physicians spreading COVID-19 misinformation.”
Many medical boards have also stated this is an increasing problem that they intend to crack down on, and yet this is not reflected in the numbers. A few questions are raised by this apparent disconnect. First, is it appropriate for medical boards to police what physicians say to their patients and to the public? Second, are medical boards the proper mechanism for dealing with physician misinformation? And finally, if so, how can medical boards do a better job?
Licensed professionals are generally given a lot of leeway in terms of exercising their professional judgement, and we certainly don’t want to chill discussion and debate about what the evidence says and best practices. However, a licensed professional carries and benefits from the imprimatur of authority and legitimacy conferred by the state government. They may also be certified by a professional board. In other words, they can say (in some form) – listen to me and trust me because I have MD after my name and I am a certified specialist. If that means something, then it has to mean something.
In other words, it makes no sense for licensed professionals to have it both ways – to benefit from a seal of professional approval without being held to a professional standard. For those concerned about free speech, we can also look at it this way. Physicians and other professionals are free to talk as a private citizen about anything they wish. But when they are speaking in their capacity as a professional, their speech is part of their professional conduct, and it is absolutely fair game to police that speech.
A physician speaking either directly to a patient or to the public on a health issue is speaking, to a degree, on behalf of their profession. This is what the public generally assumes. State medical boards exist to uphold the standards of the professions they license.
The Federation of State Medical Boards, responding specifically to COVID-19 misinformation, had this to say:
“Physicians who generate and spread COVID-19 vaccine misinformation or disinformation are risking disciplinary action by state medical boards, including the suspension or revocation of their medical license. Due to their specialized knowledge and training, licensed physicians possess a high degree of public trust and therefore have a powerful platform in society, whether they recognize it or not. They also have an ethical and professional responsibility to practice medicine in the best interests of their patients and must share information that is factual, scientifically grounded and consensus-driven for the betterment of public health. Spreading inaccurate COVID-19 vaccine information contradicts that responsibility, threatens to further erode public trust in the medical profession and puts all patients at risk.”
The AMA (American Medical Association) also weighed in:
“State licensing and credentialing boards must use their authorities to discipline clinicians who spread misinformation and to reinforce the nature and scope of professional and ethical obligations of government and nongovernment clinicians. Individual clinicians must also play an important role by actively and vigorously correcting misinformation disseminated by other clinicians.”
There is a broad consensus of relevant players that misinformation is dangerous, spreading misinformation is unprofessional and potentially harmful, and it should be policed and disciplined. And yet, it does not appear to be happening at the state board level.
I could not find any information on how often specialty boards suspend or remove certification for spreading misinformation. That is an even easier call – board certification is a privilege that has to be earned an maintained, and a specialty board can use whatever criteria they deem appropriate. This has happened – there are reports of many cases of doctors losing their certification for spreading misinformation, but there is no data to quantify this.
If there is a consensus that medical misinformation is harmful and violates professional ethical standards and are an appropriate target for discipline, why is action so uncommon? This gets to the second and third question – are medical boards the best mechanism for dealing with physician misinformation, and how can they do a better job?
The short answer to whether or not medical boards should be disciplining misinformation is yes. In the US state medical boards are the primary mechanism for maintaining the standard of care and holding physicians to generally accepted ethical and professional standards. That is literally their job. That doesn’t mean there are no other layers of protection. As already stated, specialty certification can and should be revoked for violating the high standards of a certified specialist.
There are other layers as well. Hospitals can use their own criteria to determine who can be on staff and who gets admitting privileges. They have committee that regularly review all their physicians, including all complaints and official disciplinary actions, and determines if action should be taken or if privileges should be continued.
There is also a legal layer, which hopefully would be the last resort. Professionals can be sued for malpractice that results in harm. It’s pretty clear that directly giving a patient for whom you are caring false health advice and misinformation is malpractice, and can result in harm. It’s less clear if this would hold up for a physician spreading misinformation publicly.
Legal scholars have been weighing in on this issue. There appears to be a good consensus that state medical boards can and should act when physicians spread misinformation directly to their patients. There is no apparent consensus when it comes to spreading misinformation to the public. There are first amendment concerns, although many scholars argue that the first amendment does not prevent medical boards from disciplining physicians for public misinformation.
However, many scholars argue that medical boards are simply not set up to police public medical misinformation. Often issues are in the gray zone, and there is legitimate disagreement about what the science says. Medical boards don’t necessarily have the proper expertise to judge what counts as misinformation and where the draw the line. But again, if not the medical boards, then who?
Perhaps what needs to happen is that state medical boards establish the infrastructure so that they can deal effectively with the physicians they regulate spreading demonstrable misinformation. This will likely mean that they need to expand their resources. They may also need to partner with professional organizations. For example, specialty boards are generally in a better position to determine what is misinformation within their specialty, and already had a history of putting together expert panels to review evidence and establish practice guidelines.
What can, and likely should, happen, therefore, is that specialty boards turn their attention to medical misinformation and establish practice guideline, not only for what physicians should do but what they should, and should not, say. State medical boards would not need to duplicate this effort, but can simply enforce it for physicians in their state.
It also should be noted that taking disciplinary action does not mean immediately removing a physicians license. That is the most extreme action, reserved for the worst offenses. In many instances a physician can simply be given a warning, or be required to take CME credits in the relevant topic. A lot of misinformation, in other words, can be dealt with through education.
For physicians who persist in spreading demonstrable misinformation despite these efforts, increasing disciplinary action would be appropriate. Physicians can be censored, their licenses can be suspended for a period of time, and they can ultimately be revoked. No one deserves an MD. If you are using your MD to harm the public health, and the profession has a moral responsibility to protect and advance the public health, then clearly action needs to be taken.
What is clear at this time is that physician misinformation is an increasing problem, worsened by social media and perhaps also by political division. And yet, the mechanisms we have in place for ensuring proper professional behavior seem to be failing when it comes to spreading misinformation. There needs to be a robust discussion within the profession, and including legal scholars, ethicists, and regulators, to improve our ability to ensure that the public is getting the most accurate medical information from professionals.
Physician Misinformation