Misinformation is common in social media and politics, as we know all too well. But what about the medical profession? Do some physicians willingly spread distortions, and if so, should they be disciplined?
This is the topic of a study by Dr. Katherine Drabiak, a health law professor in USF’s College of Public Health (COPH). Her paper, “The Problem with Using Medical Boards to Regulate Misinformation,” appeared in the Journal of Legal Medicine, the quarterly publication of the American College of Legal Medicine. The peer-reviewed journal publishes international research on legal issues in bioethics, health sciences, public health and environmental law.
During the height of the COVID-19 pandemic, some medical boards were called on to investigate physicians for allegedly spreading misinformation and discussing off-label medications, according to the study. These boards are important because they regulate the practice of medicine and set standards to make sure physicians are uniformly educated, well-trained and uphold public safety.
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“However, medical boards in some states have tried to take on a new role to regulate not just physician actions and behaviors, but their speech,’’ Drabiak said. “Physicians being able to speak to their patients, or the public, matters because it’s important they’re able to share their knowledge, concerns and observations about what they see in their practice.’’
If medical boards try to discipline a physician based on his speech alone, it poses First Amendment problems, she said. Censorship not only violates the rights of the physician, “but the rights of us as the listener to hear these ideas and decide whether they have merit or not.’’
“Most physicians who have come under fire assert they are not spreading misinformation, but offering an important counter opinion,’’ she added.
The paper describes the purpose and function of state medical boards, the law relating to off-label prescribing, and why using medical boards to discipline physicians for discussing controversial opinions exceeds the traditional role of these boards.
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Though physicians do have a duty to provide accurate information to the public, unprofessional conduct is not uncommon. But defining precisely what misinformation is poses a number of problems. One concern addressed in the study involves the role of off-label medications, even if they are approved by the U.S. Food and Drug Administration (FDA). Why? Because allegations that physicians who recommend off-label drugs should face discipline from medical boards for misinformation only misconstrues the nature of off-label prescribing, Drabiak noted.
“Once the FDA approves medications, physicians can legally re-purpose them and use them for other diseases or conditions if there is some evidence of benefit and it looks like the benefits outweigh the potential risks,’’ she said. “This happens quite commonly, especially for diseases like cancer, treating children, or new diseases that emerge that don't have a dedicated medication. The article explains why categorizing this as misinformation was odd, and the proper role of off-label medications.’’
Ultimately, state medical boards serve an integral function as gatekeepers of the medical profession, providing educational, licensing and disciplinary standards. These standards operate to promote patient safety, protect the public from disreputable practitioners and uphold the quality of medical care.
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However, Drabiak argued that awarding such power to state medical boards “raises significant questions of how they would determine what constitutes misinformation.’’ She posds five distinct concerns discussed at length in her study:
- The label of misinformation can be an overly broad definition, which creates difficulties determining what meets the criteria.
- Suppressing information blocks inquiry into the claim or specific allegations.
- Labeling and dismissing “misinformation” overlook the fact that some claims that appeared outlandish at first turn out to be true.
- Power and politics can influence the label of what constitutes misinformation and this designation can reverse entirely.
- Some claims involve serious matters such as scientific fraud, political misconduct, or criminal allegations, which affect the public interest.
Drabiak concluded that state medical boards can and should intervene to investigate misconduct where a physician’s actions affect patient safety or poses public policy concerns. For areas of uncertainty, the best approach is to offer countering information supported by transparent evidence.
“Granting state medical boards a new power over physicians misconstrues their purpose, overlooks the appropriateness of off-label prescribing, and hinders physicians from what they do best: focusing on patient care and moving the needle forward on our understanding of new diseases,’’ she said.