Challenges of disciplinary action for COVID misinformation

This article by Health Affairs Forefront discusses the challenges licensing boards may encounter when revoking a licenses for professional misconduct on the basis of spreading COVID-19 misinformation or disinformation. Prior Supreme Court decisions in the US has established that boards have considerable discretion to discipline healthcare licensees for speech made in connection with medical procedures (professional conduct), but disciplinary actions based on public statements not connected with a medical procedure would be subject to First Amendment rights of free speech. The article notes that boards would be able to establish that they have a compelling interest in minimizing the dissemination of medical misinformation by licensed physicians. The challenge the article identifies is in convincing that courts that revocation of the license is the least restrictive means to further that interest. The article concludes that boards may be able to successfully argue cases where physicians "disseminate misinformation with knowledge that it is false or with reckless disregard of whether it is true" and "there is a substantial body of evidence that unambiguously refutes the physician's position."

Read more