Tennessee legislators have decided to encourage physician malpractice by bullying the state medical board into rescinding its COVID anti-misinformation policy and throwing huge bureaucratic obstacles in the board’s way before it can discipline physicians who use unproven COVID treatments, including downright quackery. Their blatant disregard for science, the details of which we’ll get to in a moment, comes even as the medical profession calls for more vigilance against disinformation and taking action against doctors who spread it, a subject SBM has covered extensively, along with the quack COVID treatments peddled by some physicians.
The Federation of State Medical Boards (FSMB) 2021 annual survey of member boards found that
- 67% have experienced an increase in complaints related to licensee dissemination of false or misleading COVID-19 information;
- 26% have made or published statements about the dissemination of false or misleading COVID-19 information; and
- 21% have taken a disciplinary action against a licensee disseminating false or misleading COVID-19 information.
That last figure is encouraging news considering, as Dr. David Gorski lamented,
how rare it is for a state medical board to suspend or revoke the medical license of outright quacks and how difficult it has been on the occasions when a state has tried . . .
In July, the FSMB issued a statement reminding physicians who spread COVID misinformation that they risk disciplinary action. Since then, according to the FSMB, at least 15 boards published statements about false or misleading information and at least 12 boards have taken disciplinary action against a licensee. The FSMB is currently developing guidelines for medical boards to help address the spread of disinformation.
It is not clear to me why the FSBM’s statement emphasizes disinformation only and does not address the problem of physicians promoting unproven treatments like hydroxychloroquine and ivermectin.
In any event, as Dr. Gorski optimistically pointed out:
If there could be one good outcome from the pandemic, it would be enhanced power of state medical boards to discipline physicians promoting medical misinformation and disinformation of all kinds, not just about COVID-19 or COVID-19 vaccines.
Unfortunately, those who are hell-bent on protecting our “freedom” to thumb our collective noses at the common good and ignore public health measures as well as our “freedom” to access quack treatments are ever at the ready to quash any such efforts. It is thus that we find ourselves confronted with what the FSMB calls “troubling legislation” introduced in a number of states making it more difficult for licensing boards to discipline a licensee for spreading disinformation. The FSMB say it
strongly opposes any effort to restrict a board’s authority to evaluate the standard of care and assess risk for patient harm.
Which is exactly what the Tennessee legislature just accomplished in a new law that also includes sweeping anti-public health measures. With that, let’s turn to the specifics.
Tennessee: The Volunteer (to get COVID) State
The Tennessee Board of Medical Examiners, which regulates licensed physicians, voted in September to adopt a policy, based on the FSMB’s statement, that would subject physicians who create or spread COVID vaccine misinformation to disciplinary action.
According to the Chattanooga Times Free Press, at the time of the medical board meeting, at least 24 COVID-related complaints had been filed against health care practitioners and a lawyer for the board asked for guidance on how to handle three different types of these complaints:
- Physicians sharing their personal anti-vaccine or vaccine-hesitant opinions with their patients.
- Physicians sharing false information about vaccines in order to advise patients against vaccination.
- Physicians spreading misinformation or disinformation to multiple patients across their practice.
In response, the board decided that physicians who disseminate false information about COVID vaccines (e.g., the myth that vaccines cause infertility) should face formal discipline, although they debated “the degree to which physicians should be allowed to express their personal opinions within the confines of the doctor-patient relationship.”
They ultimately agreed on a policy that physicians who “generate and spread COVID-19 vaccine misinformation or disinformation” risk disciplinary action. Physicians “must share information that is factual, scientifically-grounded and consensus-driven for the betterment of public health”.
In support of the policy, Dr. Melanie Blake, the boards’ president, said that
It is painfully clear to the physicians who have served on the front lines of this pandemic that COVID-19 vaccine misinformation has caused undue loss of life, loss of health, loss of jobs and other incalculable losses to our society. . . . I applaud the efforts to uphold our oath as physicians despite unprecedented challenges.
The new policy did not sit well state Rep. John Ragan (R-Oak Ridge) and some of his Republican colleagues. Ragan said that after the policy was adopted, “he received phone calls from practitioners across the state who were afraid their licenses would now be in jeopardy.” He complained that the policy did not define “misinformation” and “disinformation” and took the position that the board had, in effect, enacted a new rule without going through the formal rule-making procedure required by state law.
Ragan sent letters pressuring the board to delete the policy or risk being called before the legislature’s Joint Government Operations Committee. According to The Tennessean, an attorney who works with the board warned board members that Ragan had conveyed his “displeasure . . . in the strongest terms” and “made clear he has no qualms about moving forward with dissolving the [board] and reconstituting it with new members”, something he has “in fact done with another state agency”.
My take on Ragan’s position is that he has made a highly questionable interpretation of state administrative law and used it as a bludgeon to beat the medical board into submission lest it take action against physicians giving dubious advice about COVID, including vaccines, and promoting unproven treatments. (When you see what the Tennessee legislature subsequently did, which we’ll get to soon, I think you’ll agree with me.)
Ragan is correct that state law requires agency rules to go through a specific procedure before they can become law. This procedure can be extremely cumbersome and time-consuming, including notice to the public and an opportunity to be heard, review by the attorney general and legislature, and challenges to the rule that can take months, years even, to resolve.
But is the board’s policy a “rule”? I don’t think a fair interpretation of Tennessee law supports Ragan’s claim that it is. Without getting too much into the weeds of administrative law, a “rule” is defined by Tennessee law as an
agency statement of general applicability that implements or prescribes law or policy or describes the procedures or practice requirements of any agency.
But, the definition of “rule” specifically excludes
General policy statements that are substantially repetitious of existing law.
As board member Dr. Samantha McLerran correctly pointed out, under Tennessee law
the board has the power to discipline physicians for “unprofessional, dishonorable or unethical conduct” as well as for “making false statements or representations . . . or being guilty of fraud or deceit in the practice of medicine”.
She was of the opinion that the COVID misinformation policy fell under these existing prohibitions.
I agree. The board was simply restating the prohibitions already contained in state law as they applied to COVID, not promulgating a new rule. If Rep. Ragan’s interpretation is correct, then every time a physician is disciplined for infraction of the provisions cited by Dr. McLerren, whether or not COVID-related, he could challenge the board’s action based on the absence of a specific rule defining his conduct as unlawful.
Unfortunately, Rep. Ragan’s threats worked (sort of) and a special meeting of the medical board was called “out of an abundance of caution” based on a new state law signed by Gov. Bill Lee on November 12, according to board chair Dr. Blake. At the meeting, the board voted 7-3 to remove the policy from its website. However, displaying a lawyer-like talent for parsing words, Dr. Blake said the only request the board received was to delete the policy from the website, which it had done, but “our mission remains the same”. In other words, she confirmed that the policy itself remained in force. A Department of Health attorney then recommended that the board conduct a second vote on whether to rescind the policy outright, but the board declined and the meeting adjourned.
That “new law” (which is already being challenged in court) is sweeping legislation preventing government agencies, schools, and private businesses from imposing public health measures like vaccination and mask wearing, passed by the Tennessee legislature in a special session in October devoted to COVID. (A good summary can be found here.) It also creates a private right of action for injunctive relief and compensatory damages, as well as attorneys’ fees, for anyone “injured as a result of a violation” of the new law.
Per the Chattanooga Times Free Press, these measures
stem from anti-vaccination efforts taken up by some legislators who are being egged on by groups such as Tennessee Stands
For those of you unaware, Tennessee Stands is a conservative group that opposes masks and vaccine mandates, among other public health measures, and reportedly expressed support for the January 6th attack on the Capitol.
Specifically relating to physician discipline, during the special session, as described by MedPage Today, Rep. Chris Todd (R-Madison County) and Debra Moody (R-Covington) introduced bills limiting the medical board’s ability to discipline physicians for substandard care in COVID cases:
Rep. Todd’s bill, the Tennessee COVID-19 Treatment Freedom Act, would prevent 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,” including treatments that aren’t approved by the state’s health department or the FDA.
Rep. Moody’s bill would prevent . . . [disciplinary] actions “so long as the physician exercised independent medical judgment and believes that the medical treatment is in the best interest of the patient,” and the patient consents.
The gist of these proposals, if not all of the language, made it into the final version of the legislation, which passed and was signed by the Governor despite what one law firm’s analysis described as “fierce opposition from the Tennessee business community, local school boards, health care providers, and other stakeholders”. (As an aside, all this state and federal COVID legislation has become essentially a full employment act for healthcare and employment lawyers.)
In a gigantic “screw you” aimed at the medical board, the new law requires both the medical and osteopathic boards to develop rules if they are to discipline practitioners for prescribing COVID-19 treatments. This means each board must go through the laborious and time-consuming process I briefly described earlier, including a review of the rules by the legislature’s Joint Government Operations Committee, co-chaired by none other than Rep. Ragan, before a physician can be disciplined for substandard prescribing. I assume that, until then, practitioners can prescribe whatever they want, including ivermectin, hydroxychloroquine, homeopathy, Black Oxygen Organics, Miracle Mineral Solution (bleach), herbs, dietary supplements, essential oils, and whatever else their tolerance for pseudoscience will allow, without risking discipline.
The new law also addresses monoclonal antibodies, allowing practitioners to prescribe and administer them as a treatment for or prophylaxis against COVID if they “exercise independent professional judgment” and “notwithstanding any guidance or advice from a governmental entity to the contrary”.
I am not sure where this gets the prescriber, other than the ability to disregard governmental (such as FDA or CDC) guidance. Although I could find no exact definition of what “independent professional judgment” means in medicine (the term doesn’t seem to have an agreed-upon definition), I don’t believe it means that you can toss medical science in making a treatment decision or that it absolves the physician of failure to meet standard of care. Even if government guidance would be excluded from evidence of malpractice in a disciplinary action against a practitioner, the board could still consider other evidence of standard of care, such as expert opinion and medical literature. But, of course, no disciplinary action can proceed anyway until the medical and osteopathic boards go through the cumbersome agency rule-making process.
If the board trips up and violates the new COVID law, a practitioner could bring a civil action against it per the law’s creation of a private right of action, complete with compensatory damages and attorneys’ fees. Whether this happens or not, the threat is certainly there, dampening any appetite to pursue disciplinary action which might possibly subject the board to litigation.
Not all Republicans are on board with the new law. Sen. Richard Briggs (R-Knoxville), a physician and the only Republican senator who voted against the bill, said that doctors have a responsibility to be a “reliable source of information”:
The Government Operations Committee (which will review any board disciplinary rules related to COVID), should not be telling the Board of Medical Examiners, who (are) charged with protecting the public health and safety, that they can’t do something to a doctor that’s intentionally giving known misinformation.
Sen. Heidi Campbell (D-Nashville) agrees:
Once we start as a legislature telling doctors how to practice medicine to the point we’re intervening in their ability to perform their duties, then we’ve got a big problem.
She added that this “disdain” for science is putting Tennessee in “big, big trouble”. I think she’s right, only it’s not just in Tennessee.