The bill would allow regulators to levy professional misconduct charges against health care practitioners who spread misinformation to patients. (Getty Images)
Assembly lawmakers on Monday advanced legislation that could see health care workers penalized for false health claims.
The bill, which cleared the Assembly’s health committee in a party-line, 5-3 vote with an abstention from Assemblywoman Margie Donlon (D-Monmouth), would allow boards that oversee health care practitioners to levy professional misconduct charges against doctors and others who make false health claims to their patients.
The bill is meant to combat rising misinformation in the health care space following the pandemic, said bill sponsor Assemblyman Herb Conaway (D-Burlington).
“Sadly, we have a number of such licensed persons who, in my opinion, given their public statements on vaccines or other questions, do not seem to be taking their responsibility as a health care official as seriously as they should,” said Conaway, the committee’s chair. “This misinformation makes it very difficult for public health entities to actually do the job that they’re tasked to do, and that is advance public health.”
The bill does not lay out clear penalties for misinformation misconduct, instead allowing each professional board to draft their own regulations.
A range of anti-vaccine activists opposed the bill before the committee, alleging it would stifle doctors’ ability to treat patients.
“This bill is going to stop doctors from doing things if the mainstream media says they can’t,” said Jennifer Brown, a nurse.
Brown pointed to the Food and Drug Administration’s rescindment of an emergency use authorization for hydroxychloroquine that allowed the anti-malaria drug as a treatment for COVID-19 in the earliest months of the pandemic. She claimed ending the emergency use authorization limited viable treatment options so people would be forced to get COVID-19 vaccines.
She added ivermectin, a dewormer championed by former President Donald Trump as a treatment for the virus, should have been allowed.
Studies have shown neither drug is effective at treating COVID-19.
An initial version of the bill defined misinformation as “any health-related claim of fact that is false and contradicted by contemporary scientific consensus contrary to the standard of care.” Midway through Monday’s hearing, Conaway, a physician, called for an amendment to remove the second portion of that definition, starting with the word “and.”
Numerous witnesses had cautioned that scientific consensus can change over time.
Renee Kohanski, a Somerset County psychiatrist representing the Association of American Physicians and Surgeons, a conservative nonprofit that backed hydroxychloroquine as a treatment for COVID-19, pointed to beliefs in bygone eras that included pathologizing independence in women, noting the case of Elizabeth Packard, whose husband wrongly committed her to an insane asylum in 1860.
Contemporary laws in Illinois, where Packard was committed, did not require evidence of mental health issues for the institutionalization of married women.
“As barbaric as that may seem, if a psychiatrist of the time was to object to this using the words of this bill, that was within a contemporary consensus of science and the psychiatrist would have been subjected to disciplinary action,” Kohanski said. “Consensus and scientific inquiry are fluid in nature.”
Conaway said the legislation would not bar doctors from prescribing off-label medication or exploring new treatments.
“There’s nothing in this bill that would stop that from happening,” he said. “People have anxiety over it. I’m not quite sure why it is, and certainly this legislator is not going to be involved in a process that would impede the scientific process and the ability of health care professionals, scientists to engage in the research.”
Other critics charged the law would face constitutional hurdles, pointing to a similar California law that allowed regulators to punish physicians who spread falsehoods about COVID-19.
A federal judge in California enjoined the law last January, finding it was unconstitutionally vague, but contrary to claims made by witnesses Tuesday, he did not rule on free speech claims made by the five doctors who sued to invalidate it. California has since repealed the law.
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