My last post for 2020 was entitled 2020 and the pandemic: A year of (some) physicians behaving badly. The reason was simple. The COVID-19 pandemic, which first hit Wuhan, China in December 2019, was declared a pandemic by the World Health Organization in March 2020, and shortly thereafter caused mass shutdowns and travel restrictions that led some physicians to reveal themselves to be very bad actors indeed in terms of spreading misinformation, advocating quackery, and outright grifting. Sure, the usual suspects (several of whom were ultimately dubbed the “Disinformation Dozen” a few months ago) were involved, which is exactly what one would expect. After all, what were doctors like Joseph Mercola, Sherri Tenpenny, Kelly Brogan, and the like going to do during a pandemic except switch their grift to the coronavirus and COVID-19 vaccines? This was utterly expected. Years—even decades—before, I had wondered how doctors like these could keep their state medical licenses.
I will admit, however, to being surprised at just how many doctors who had previously demonstrated no history of this sort of activity took the opportunity to dive head first into the COVID-19 misinformation pool. Even worse, as has been documented here, even some highly respected doctors and academics have become “COVID contrarians”. They minimize the risk of harm from the coronavirus (particularly in children), make risibly off-base predictions (e.g., “we’ll have herd immunity by April“) and advocate against mask mandates (particularly in schools) and vaccinating children—or even erroneously claim that respiratory syncytial virus (RSV) is being misdiagnosed in children as COVID-19 and that hospitalizations of children are being exaggerated. Worse, when corrected for their mistakes, they almost never seem to have the humility to admit error and move on; often they double down and act as though their statements were never refuted.
I review all this because there’s a topic I’ve been meaning to write about (and have written about a bit at my not-so-super-secret other blog) regarding the lack of professional sanctions against physicians who spread health misinformation, be it about vaccines, masks, COVID-19, or anything else. Going back to the case of cancer quacks like Dr. Stanislaw Burzynski, Dr. Rashid Buttar, and beyond, I’ve long lamented how even the most obvious quacks seem to be able to keep their medical licenses and antivaccine doctors (e.g., Dr. Bob Sears) get off with a slap on the wrist, even when their medical board actually investigates. True, there are occasional exceptions, such as Dr. Paul Thomas, a rising star in the antivaccine movement whose license was suspended because the Oregon Medical Board deemed his antivaccine practices a danger to his patients, Dr. Mark Geier, who subjected autistic children to a hormone blocker usually used in children to treat central precocious puberty, based on the belief that decreasing testosterone levels would allow the mercury from vaccines to be chelated easier with his chelation therapy, and “Lyme literate” Dr John Lentz. Basically, state medical boards seem to be (mostly) toothless when it comes to intervening to stop such dangerous doctors. This is a topic that I’ve been meaning to write about, and a few weeks ago the Federation of State Medical Boards (FSMB) gave me an excuse.
The Federation of State Medical Boards enters the fray
Historically, state medical boards seem to have problems going after outright quacks, much less physicians spreading dangerous misinformation during a global pandemic that has killed more than 600,000 people so far in the US alone. This is why I was so heartened a few weeks ago to see this statement from the Federation of State Medical Boards (FSMB), the organization that represents state medical boards:
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 fact that the FSMB issued such a statement stating that physicians spreading misinformation and disinformation about COVID-19 risk disciplinary action was a big deal, at least to me. However, my enthusiasm and approval were tempered by my knowledge of how state medical boards actually operate. They are, in general, underfunded, have inadequate resources, and can only act when they receive a complaints about specific instances of poor practice or patient injury. Indeed, when a state medical board actually does act against an antivaccine physician (for instance), its penalties are often minimal, as was the case for Dr. Bob Zajac in Minnesota.
Indeed, I’ve long 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, having written more posts over the years about this problem, both here and elsewhere. One good example that I like to cite (and did cite above but repeat here because I can’t emphasize his example enough and feel it’s worth expanding on briefly) is cancer quack Stanislaw Burzynski, who has been practicing his cancer quackery in Houston since the late 1970s and, despite the occasional attempt of the Texas Medical Board to put a stop to his activities, has managed to prevail, with only minor impediments placed on his ability to practice, leading me to lament, “How is it that in 2018 cancer Stanislaw Burzynski is still preying on desperate cancer patients?” I even lumped him together with correspondence school naturopath and “pH Miracle Living” quack Robert O. Young as examples of how poorly many states regulate medical practice. (Of course, Burzynski practices in Texas, and Young used to ply his quackery in Florida, two of the worst states for this problem.)
Elsewhere, I’ve discussed the problem before a number of times. The problem is that state medical boards tend to be reluctant to go after doctors who use unscientific treatments like “detoxification” and colon cleanses because it forces them to enforce a standard of care, because such cases are harder to prove, and because there is so much pushback. State medical boards are generally good at going after doctors who commit easily identified, clear-cut breaches in trust, such as substance abuse, defrauding insurance companies, or diddling patients. When it comes to making judgment calls about doctors practicing outside of the standard of care, they’re a lot more reluctant to do so. That’s why the only physician behaviors very likely to result in strong action consists of running a prescription mill, sexual improprieties with patients, or practicing while impaired due to abuse of alcohol or illicit substances. It’s a matter of resource allocation and prioritization. State medical boards tend to react primarily to what they perceive to be the most immediately and obviously dangerous behaviors. Practicing quackery rarely makes the cut, because medical boards tend to be loathe to make value judgments about medical practice, and proving quackery is way harder and more resource-intensive than proving that a doctor is an addict who has been practicing while impaired or has sexually abused patients.
This applies to even horrible surgeons like Dr. Christopher Duntsch, whose epic incompetence in the operating room coupled with alcohol abuse resulted in multiple “clean kills” and paralyzed patients. He was rare in that his bungled operations so alarmed colleagues that they actually took the even rarer action of complaining about him to the Texas Medical Board. Even so, all too often it took a long time to take down. Ultimately, Dr. Duntsch, who had major substance abuse problems in addition to his epic incompetence in the operating room, finally did lose his medical license and is now serving a life sentence in a Texas prison for multiple counts of aggravated assault relating to 33 botched surgeries over two years, including two that resulted in patient death. Indeed, Dr. Duntsch’s case was so remarkable that he is now the subject of an eight part series on Peacock entitled Dr. Death: The Undoctored Story, which I’ve been meaning to watch:
The good thing about the case of Dr. Duntsch is that doctors as sociopathic as he are rare. The bad thing about the case is that it took a really long time for his colleagues (who knew his reputation and had had to try to salvage his disastrous complications) and the Texas Medical Board to act.
Which brings us to COVID-19 misinformation, which can kill. Are state medical boards actually doing anything? While it’s true that it has been less than a month since the FSMB issued its statement, I thought I’d look into this.
“No physicians disciplined for COVID falsehoods”
Earlier this week, a reader made me aware of a story published in MedPage Today that looked into the question of whether state medical boards have been investigating physicians making false COVID-19 claims. Its findings were not reassuring:
Despite a national call to sanction doctors who spread COVID-19 misinformation, a MedPage Today investigation found that not one of 20 physicians who’ve peddled such falsehoods has been disciplined by their state licensing agency for doing so.
That’s not to say that complaints haven’t been filed, or that investigations haven’t been launched. These elements are confidential in most states, including the 10 contacted by MedPage Today who license the physicians.
But that means physicians who have advanced false COVID information — including Simone Gold, MD, JD; Scott Atlas, MD; Joseph Mercola, DO; Lee Merritt, MD; Sherri Tenpenny, DO; and Stella Immanuel, MD — are free to continue to misinform their patients and the public, even as the Delta variant surges.
“Our statement is a reminder to physicians that words have consequences and during a public health emergency like COVID-19, those words can mean life or death for patients,” Joe Knickrehm, vice president of communications for the Federation of State Medical Boards (FSMB), told MedPage Today via email.
Obviously, Dr. Joe Mercola is well-known to readers of this blog, my having featured him in a post last month describing his copious spreading of online COVID-19 misinformation. He is what I have long referred to as a quack tycoon, given that his net worth is north of $100 million, thanks to his online supplement and quackery sales supported by his website, which has spread antivaccine misinformation for close to 25 years. As I mentioned before, of course he pivoted to COVID-19 misinformation and antivaccine fear mongering targeting the COVID-19 vaccines, including false claims that the flu vaccine makes you more susceptible to COVID-19, that mRNA-based COVID-19 vaccines are “gene therapy” that can “permanently alter your DNA”, that the vaccines will cause global depopulation, and that ivermectin is a miracle cure for COVID-19 whose “suppression” is the “crime of the century.”
I also can’t help but note that the reporters seem not to be aware that Mercola recently moved from Illinois to Florida and appears to not be licensed in Florida. Also, he hasn’t practiced medicine for over a decade, which makes asking the Illinois Department of Financial and Professional Regulation strike me as a bit off-target, given that the only thing Mercola would lose if he lost his medical license would be prestige. (His ability to grift would remain intact.) Still, here’s the statement from the story:
In a statement, the Illinois Department of Financial and Professional Regulation said that if the agency “determines a licensee committed violations against the Act that regulates their profession, an appropriate course of action will be taken. Complaints filed with and investigations undertaken by IDFPR are confidential, unless and until a public complaint or discipline is issued by the Department.”
The largest number by far of doctors featured in this story hold medical licenses in California: Simone Gold, MD, JD; Scott Atlas, MD; Dan Erickson, DO; Artin Massihi, MD; Jeffrey Barke, MD; Jennings Ryan Staley, MD; Brian Tyson, MD. Several of these doctors are familiar. For example, Simone Gold is a prominent member of the Frontline COVID-19 Critical Care (FLCCC) Alliance, which has been promoting ivermectin as the miracle cure for COVID-19 that “they” don’t want you to know about. Unsurprisingly, last summer she was promoting hydroxychloroquine as the miracle cure for COVID-19 that “they” don’t want you to know about.
As for the rest of the doctors in the list, last year around this time Hoover Institution hack Scott Atlas, a radiologist with no expertise in infectious disease or epidemiology, rose to become one of Donald Trump’s most trusted medical advisors regarding the pandemic, even though he was very much for “natural herd immunity“. Early in the pandemic Dan Erickson and Artin Massihi published a highly dubious study that tried to estimate the prevalence of COVID-19. Jeffrey Barke, whom I had never heard of before, has a concierge practice in Newport Beach and appears to be an antimasker, having published a book a year ago entitled Covid-19 A Physician’s Take on the Exaggerated Fear of the Coronavirus. And then there was this last September:
His medically unorthodox opinions have become familiar among the voices claiming that the coronavirus has been politicized in an effort to damage President Donald Trump’s reelection campaign.
Even despite Barke’s proactive omnipresence on social media, a video he posted Sept. 17 managed to create new shock waves – to the point that Hoag Hospital, with which Barke has a business relationship, publicly distanced itself from him.
In last week’s video, Barke shares a split-screen with fellow anti-masking media star Peggy Hall. “What I do, Peggy, to protect you and to protect others when I’m in public – I think better than a mask – this is what I do,” Barke asserts, suddenly brandishing a 9-millimeter handgun.
“You know, I live in Orange County so I carry this wherever I go,” Barke continues, adding that he works for “a local sheriff’s department agency as a reserve deputy.”
The next day, Hoag tweeted that Barke’s “radical views on COVID, masking and hydroxychloroquine” are “diametrically opposite” from the hospital’s.
Well alrighty, then.
Then there’s Jennings Ryan Staley, who has his own mention on the US Department of Justice website:
Dr. Jennings Ryan Staley, previously charged with one count of mail fraud, was indicted by a federal grand jury yesterday for additional crimes arising from his business venture selling COVID-19 “treatment kits,” which he advertised to one potential customer as a “miracle cure.” Staley is a licensed physician and the former operator of Skinny Beach Med Spas in and around San Diego.
According to the new charges, which became publicly available today, Staley agreed with a Chinese supplier to smuggle hydroxychloroquine powder into the U.S., lying to U.S. Customs by mislabeling a shipment as “yam extract.” Staley is also charged with stealing the name and identifying information of one of his employees in order to create and submit a bogus prescription for hydroxychloroquine on the employee’s behalf, in order to sell the drugs at a markup to his customers.
In late March and early April 2020, Staley marketed and sold his treatment kits to Skinny Beach customers. He described his product as a “concierge medicine experience,” which included hydroxychloroquine—an anti-malarial drug that Staley described to one potential customer as a “guaranteed” cure for COVID-19. Staley’s kits were priced as high as $3,995 for a family of four, while Staley himself paid roughly $1 per tablet of hydroxychloroquine. Staley’s marketing materials, per the indictment, stressed that recipients should “NOT BELIEVE THE REPORTS THAT HYDROXYCHLOROQUINE DOESN’T WORK!”
During a phone call with a prospective customer, in reality an undercover FBI agent, Staley repeatedly promised that the drugs he was selling would cure COVID-19.
If he’s convicted, this should be a slam dunk, given that most states automatically revoke the medical license of any physician convicted of a felony, and another notice states that he pleaded guilty to “one count of importation contrary to law, admitting that he worked with a Chinese supplier to try to smuggle into the United States a barrel that he believed contained over 26 pounds of hydroxychloroquine powder by mislabeling it as ‘yam extract.'” (As a side note, hilariously, this scammer got scammed, given that the shipment turned out only to contain baking soda.)
Meanwhile, Dr. Brian Tyson appears to be a run-of-the-mill hydroxychloroquine quack with an outsized social media presence, who is now promoting ivermectin as part of a “multidrug therapy” for COVID-19:
Personally, I appreciated the FDA’s snark on this. Those of us who have criticized ivermectin believers acknowledge that, when used for its intended purpose, it’s a great drug. We just recognize that there’s no good evidence that it is as much of a “miracle” drug for COVID-19 as it is for river blindness.
I could go on and on through the list, but why bother? Instead, let’s just sample some of the responses from various state medical boards, starting with California, given the number of offenders in that state:
Carlos Villatoro, public information officer for the Medical Board of California, said in an email to MedPage Today that “publicly spreading false COVID-19 information may be considered unprofessional conduct and could be grounds for disciplinary action. The Board will review complaints it receives about its licensees on this topic, as it does with all complaints. To date, no accusation has been filed against a licensee regarding this issue.”
Let’s move on to nearby Idaho:
Yvonne Dunbar, counsel for the Idaho State Medical Board, told MedPage Today in an email, “Neither the Idaho Medical Practice Act nor the applicable administrative rules provide a basis for the Board to discipline licensees for statements made during a conference, to the media, or in any other public setting.”
However, she said the board “does have authority to investigate and possibly discipline its licensees for statements or behaviors which transpire in a health care setting … if it is established that they: ‘Engag[ed] in a pattern of unprofessional or disruptive behavior or interaction in a health care setting that interferes with patient care or could reasonably be expected to adversely impact the quality of care rendered to a patient. Such behavior does not have to have caused actual patient harm to be considered unprofessional or disruptive.'”
Unsurprisingly, many of the docs who promote COVID-19 misinformation on social media and old school media (TV, newspapers, etc.) often also practice according to that misinformation, discouraging masking, demonizing vaccines, promoting “miracle cures” such as ivermectin and hydroxychloroquine (with zinc, and other drugs and supplements, of course!) as part of their treatment protocols.
I can’t resist quoting North Carolina (about, appropriately enough, Rashid Buttar, who once famously referred to the North Carolina Medical Board as a “rabid dog“):
If the North Carolina Medical Board has information that a licensee may be spreading false or misleading information about COVID-19, it would investigate, said communications director Jean Fisher Brinkley. “Decisions about possible regulatory action would be based on the evidence gathered and, specifically, whether the Board has evidence that a violation of law or professional ethics occurred, a process that is consistent with the FSMB’s statement.”
There is a depressing similarity to all the responses, namely either that medical board of the state where the physician in question practices hasn’t received any complaints as of yet, that speech alone can’t be penalized, or that they will “investigate” if there are complaints. When a bunch of readers sent me a link to the FSMB complaint, I generally responded that I don’t expect much to come of it. More recently, I responded to those sending me this MedPage Today article, “I hate to say I told you so, but I told you so.” But why? Why is nothing happening?
The First Amendment vs. professional speech
To get an idea of why nothing is happening, I can’t help but point to the reaction of some physicians to the FSMB statement, starting with the Association of American Physicians and Surgeons (AAPS), a far right wing medical John Birch Society camouflaged as a legitimate medical professional society. I’ve written about the AAPS a number of times, relating how it’s promoted antivaccine pseudoscience blaming vaccines for autism, including a view that is extreme even among antivaccine activists, namely that the “shaken baby syndrome” is a “misdiagnosis” for vaccine injury. It’s worse than that, though. AAPS has promoted HIV/AIDS denialism, blamed immigrants for crime and disease, promoted the pseudoscience claiming that abortion causes breast cancer using some of the most execrable “science” ever, and not only rejected evidence-based guidelines as an unacceptable affront on the godlike autonomy of physicians; the very concept of a scientific consensus about anything. Let’s just put it this way. The AAPS has featured publications by antivaccine mercury militia “scientists” Mark and David Geier and many others. Unsurprisingly, in the age of COVID-19, the AAPS has seamlessly pivoted to COVID-19 denial, antimask nonsense, and antivaccine conspiracy theories.
As you might expect, the title of Dr. Tamzin Rosenwasser’s is “The Federation of State Medical Boards Channels the Soviet NKVD“. (I suppose I should be grateful that Nazis weren’t mentioned, at least in the title.) After quoting the FSMB statement, Dr. Rosenwasser goes all anti-Communist, consistent with the AAPS’s similarity to a medical John Birch Society:
The FSMB has been described as a “private lobbying organization that represents the state’s attorneys who work for medical boards.” It does not by itself have the legal authority to take a doctor’s license but is highly influential.
The NKVD, the People’s Commissariat for Internal Affairs, was the Soviet secret police agency, the precursor to the KGB.
Unsurprisingly, the editorial goes on to parrot antivaccine misinformation about the COVID-19 vaccine and COVID-19 in general, continue the author’s confusion on whether the FSMB are Communists or Nazis, and appeal to “free speech”, portraying any effort to “censor” misinformation as an unconscionable assault on free speech. It’s a very appealing argument, at least in the US, where free speech protections are embedded in the Constitution. Doctors who are antivaccine and/or promote COVID-19 misinformation often appeal to free speech (and, in the US, the First Amendment) and portray any attempts by medical licensing bodies, whatever the state or country, to discipline them for their activities as fascistic (or Communist) assaults on “free speech”.
Although there are certainly gray areas, these attacks are deceptive, for the simple reason that professional speech by a physician licensed by the state is not the same as some random fool on social media saying the same thing. When physicians use the imprimatur of authority that society has bestowed on them to add the authority of their profession to their misinformation, that is arguably an abuse their status as a physician. These physicians spreading COVID-19 misinformation disingenuously ignore the simple fact that, if they were not physicians, their misleading pontificating about how the vaccine doesn’t work or is dangerous, how we’ll have “herd immunity by April”, or touting drugs that don’t work as “miracle cures” for COVID-19 that are being “suppressed” by The Man would not be taken nearly as seriously by the public.
As part of our professional role as physicians and surgeons we are granted privileges unknown to non-physicians, including being allowed to ask patients about their deepest and darkest personal matters, administering potentially toxic drugs (such as chemotherapy for cancer), or, in the case of surgeons, removing or rearranging body parts for therapeutic effect using sharp instruments in a way that would be considered assault and battery if attempted by a non-surgeon. We are granted these incredible privileges because society has deemed us worthy after having completed four years of rigorous training in medical school followed by anywhere from three years to a decade or more of additional training in residency and fellowship. In the age of COVID-19, the entire right-wing COVID-19 disinformation ecosystem, of which the AAPS is a small but influential part on medical matters, will treat any physician whose license is sanctioned by a state medical board as a free speech martyr. This is propaganda, however, not reality, because our professional status makes our utterances on COVID-19 professional speech that is arguably part of our profession as physicians, not just an exercise of free speech, and if we abuse our professional speech, state medical boards should certainly be empowered to investigate and discipline us.
After all, as a result of the privileges granted us, society also accords our words on medical matters (and, let’s face it as ridiculous as it might seem, on many nonmedical matters too) much more weight than those coming from nonphysicians. Physicians, in my experience, often both forget about that and take advantage of it. Again, I like to emphasize that, were these physicians not physicians, a lot fewer people would give a rodent’s posterior what their latest take on COVID-19 or vaccines is. In other words, professional speech misused can have deadly consequences, particularly during a pandemic. Contrary to Dr. Rowenwasser’s ridiculous comparison to the repression carried out by the NKVD and appeal to the Nuremberg Code, it is entirely appropriate for the FSMB to recommend going after the medical license of—or otherwise disciplining—any physician promoting obvious COVID-19 and antivaccine misinformation and conspiracy theories. That is not suppression of free speech. That is professional oversight.
Advocates for science- and evidence-based medicine cannot help but be appalled at how easily physicians practicing modalities that are clearly so far outside the standard of care that they might as well be in another galaxy can continue to do so with little or no oversight or even interference by state medical boards. In essence, it takes mind-numbingly egregious offenses to motivate a board to act, be it substance abuse by a physician resulting in obvious impairment, non-science-based treatments resulting in the death or severe injury of a patient, or blatantly illegal behavior, such as running a narcotic prescription mill. Part of the problem is that the attitude among doctors seems to be that a medical license is a right, rather than what it really is: an incredible privilege bestowed upon us physicians and surgeons by society that takes an equally incredible commitment and skill to be allowed to continue to keep. That same attitude among physicians also seems to lead them to think that they should be able to say anything they want about the pandemic, even though their words are arguably professional speech (particularly given how many “COVID contrarian” doctors use their status either to sell a product or to sell themselves as “experts”).
Our patients deserve better. The vast majority of physicians are competent and try their best to deliver the best evidence-based care they can to their patients. However, doctors who consistently do not practice according to the standard of care, be it because they are incompetent, dishonest, impaired by substance abuse, or because they have come to believe in blatantly unscientific treatments that do not help and not infrequently harm patients, do not deserve to be physicians. The same is true of physicians who abuse their status in order to peddle misinformation about a virus causing a pandemic that has killed over 600,000 in the US alone and millions worldwide—and is still sickening and killing people at unacceptably high rates. I’m glad the FSMB said something about revoking the licenses of physicians who spread misinformation, but I fear that in practice implementing such a policy will be well-nigh impossible.