A Comprehensive Response to Disinformation Campaigns by Physicians

By David C. Pate, M.D., J.D.

Background

In May of 2020 at the World Health Assembly, a resolution was passed recognizing that managing mis-and disinformation would be critical to managing the COVID-19 pandemic, and then on September 23, 2020, the World Health Organization (“WHO”) declared an “infodemic” in a joint statement by the WHO and United Nations with respect to the COVID-19 pandemic in which “false or misleading information in digital and physical environments during a disease outbreak” had become excessive. The organizations pointed out that COVID-19 is the first pandemic in history in which technology and social media was used to further the public health aims of containing and controlling the pandemic, but also in “amplifying an infodemic that continues to undermine the global response and jeopardizes measures to control the pandemic.” They also pointed out that “Mis- and disinformation can be harmful to people’s physical and mental health; increase stigmatization; threaten precious health gains; and lead to poor observance of public health measures, thus reducing their effectiveness and endangering countries’ ability to stop the pandemic.”

https://www.who.int/news/item/23-09-202-managing-the-covid-19-infodemic-promoting-health-behaviours-and-mitigating-the-harm-from-misinformation-and-disinformation

The WHO pointed out that false and misleading information “causes confusion and risk-taking behaviours that can harm health. It also leads to mistrust in health authorities and undermines the public health response. An infodemic can intensify or lengthen outbreaks when people are unsure about what they need to do to protect their health and the health of people around them. With growing digitalization – an expansion of social media and internet use – information can spread more rapidly.”

https://www.who.int/health-topics/infodemic

On July 14, 2021, the U.S. Surgeon General issued an advisory entitled: “Confronting Health Misinformation.” In it, Surgeon General Vivek Murthy stated: “Health misinformation is a serious threat to public health. It can cause confusion, sow mistrust, harm people’s health, and undermine public health efforts. Limiting the spread of health misinformation is a moral and civic imperative that will require a whole-of-society effort.”

The report goes on to state: “Misinformation can sometimes be spread intentionally to serve a malicious purpose, such as to trick people into believing something for financial gain or political advantage. This is usually called ‘disinformation.’”

Click to access surgeon-general-misinformation-advisory.pdf

On July 29, 2021, The Federation of State Medical Boards (“FSMB”) issued a public statement entitled: “Spreading COVID-19 Vaccine Misinformation May Put Medical License at Risk” to address what it reported as a “dramatic increase in the dissemination of COVID-19 vaccine misinformation by physicians and other health care professionals on social media platforms, online and in the media.” The statement reads as follows:

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.”

https://www.fsmb.org/advocact/news

On September 9, 2021, the American Board of Family Medicine, the American Board of Internal Medicine, and the American Board of Pediatrics issued a “Joint Statement on Dissemination of Misinformation” expressing support for the FSMB’s statement above, but going further and stating the following:

“We also want all physicians certified by our boards to know that such unethical or unprofessional conduct may prompt their respective board to take action that could put their certification at risk.

Expertise matters, and board certified physicians have demonstrated that they have stayed current in their field. Spreading misinformation or falsehoods to the public during a time of a public health emergency goes against everything our boards and our community of board certified physicians stand for. The evidence that we have safe, effective and widely available vaccines against COVID-19 is overwhelming. We are particularly concerned about physicians who use their authority to denigrate vaccination at a time when vaccines continue to demonstrate excellent effectiveness against severe hospitalization and death.”

https://www.abim.org/media-center/press-releases/joint-statement-on-dissemination-of-misinformation

On May 23, 2023, the U.S. Surgeon General issued a new advisory entitled: “Confronting Health Misinformation.” In the advisory, Surgeon General Murthy states: “Health misinformation is a serious threat to public health. It can cause confusion, sow distrust, harm people’s health, and undermine public health efforts.” A critical point, in my opinion, is the statement: “Limiting misinformation helps us make more educated decisions for ourselves, our loved ones, and our communities.” In the report, misinformation is defined as: “information that is false, inaccurate, or misleading according to the best available evidence at the time.”

The Surgeon General’s advisory also calls out the harmful effects of misinformation during the COVID-19 pandemic: “During the pandemic, health misinformation has led people to decline vaccines, reject public health measures, and use unproven treatments. Health misinformation has also led to harassment and violence against health workers, airline staff, and other frontline workers tasked with communicating evolving public health measures.”

On August 15, 2023, a study entitled Communication of COVID-19 Misinformation on Social Media by Physicians in the U.S. was published in the Journal of the American Medical Association Network Open (https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2808358). The authors point out that approximately 1/3 of the >1.1 million confirmed COVID-19-related deaths in the U.S. as of January 18, 2023, “were considered preventable if public health recommendations had been followed.”

The authors of this study examined a time period beginning just after COVID-19 vaccines became available to the public (January 2021) through the end of the following year (December 2022). They identified 52 physicians in 28 different specialties across all regions of the United States who repeatedly spread COVID-19 misinformation using social media. They found that nearly one-third of these physicians were affiliated with groups with a history of spreading medical disinformation, such as America’s Frontline Doctors.

Several books are planned for publication later this year and early next year examining the coordinated efforts by some of these physicians and organizations sponsoring them, as well as some of the money fueling these efforts. The challenge is that while there appears to be very well-funded and coordinated disinformation campaigns, the medical organizations that could respond to protect the public were very uncoordinated, and often stood on the sidelines not knowing how to respond or simply choosing not to.

Hospitals and physicians witnessed first-hand the harm of disinformation causing deceived individuals to show up in their emergency rooms and intensive care units still refusing to believe that they had COVID-19 or surprised that the ivermectin or hydroxychloroquine or other concoction of vitamins and supplements did not prevent their severe disease, while public health individuals watched in frustration as these physicians (including two physicians from America’s Frontline Doctors who served in one case as a state surgeon general and in the other a member of a public health board) undermined public health measures and thwarted efforts to protect the public.

What I present here is basically a strategic plan for the Federation of State Medical Boards; state medical licensing boards; specialty boards that certify physicians; national, state, and county medical professional associations and societies; specialty organizations; and hospitals to respond to the disinformation campaigns that will undoubtedly be repeated during future pandemics. It has commonly been said that “nature abhors a vacuum,” but it can just as well be stated that truth abhors a vacuum. That is because disinformation campaigns are enabled when true experts and authoritative organizations remain silent.

The Problem to be Addressed

This proposed national response is very focused and directed at:

1. Physicians who represent themselves as physicians and who promote their education, training, medical licensure, board certification, and/or knowledge and experience in order to gain the trust of their audience in an effort to influence the public about measures that should be taken or avoided regarding prevention, diagnosis and treatment of a disease;
2. Who utilize social media or other press, media and public forums;
3. To disseminate medical information that the physician knows to be false, should know is false or with reckless disregard as to whether the information is true or false;
4. With such information being harmful to, or having the potential to harm, the public if followed; and
5. Who continue to spread the medical information after the WHO, FDA, CDC, FSMB, state licensing boards, specialty certifying boards, and/or national professional associations have issued public statements or posted statements to their websites that indicate the information is false, incorrect, or inconsistent with the scientific evidence.

In other words, physicians who are touting their credentials to gain the public’s trust, while disseminating medical information that they know to be false or should know that is false repeatedly and over an extended period of time, and continue to do so after public statements by authoritative professional bodies or warnings (see below).

The reasons for this very limited and targeted focus include:

1. This provides the best opportunity to defeat legal challenges of adverse actions (see below for a discussion of these legal issues).
2. Science, medicine and technology evolve. With that evolution, we learn new things, we develop fuller understandings of things we previously have studied, and sometimes we learn that what was previously known is no longer true or is no longer completely true. With this evolution in our knowledge and technology, the way we evaluate, diagnose and treat conditions also evolves and new best practices emerge. The statements and practices of physicians should only be judged based upon the evidence, the consensus of experts and the prevailing practices at the time of the statements.
3. We do not want to penalize physicians who are trying to help the public and their patients during a time of uncertainty for simply being mistaken or not being aware of a recent new study. Rather, these efforts are focused on those physicians who are acting irresponsibly, in an ongoing fashion even after being put on notice or forewarned, promoting information that is contrary to the weight of the evidence or public guidance by professional and expert organizations without acknowledgement of that fact.

The Harms or Potential Harms that Need to be Addressed

Medicine has become a more complicated and expansive field given the explosive growth of knowledge in the field related to scientific discovery; new scientific methods; and advances in our studies and understanding of the fields of genetics, immunology, molecular and cell biology, virology, imaging techniques, genomics, vaccinology, proteomics, precision medicine, among others. Because of this complexity, rapid rate of new developments, and confusing messaging from advertisements for medications, supplements, treatments and non-traditional therapies, the public often relies on advice from physicians, whether during a visit with their own doctor, or from listening or reading the advice of doctors who provide guidance to the public on television and radio, in articles or on social media platforms.

Physicians are trusted sources for information by the public because of their extensive education, training, experience, expertise, ethical principles guiding the profession, and oversight and regulation. The public is generally unaware that there is little oversight and regulation of physicians providing guidance to the public, nor that some physicians may be violating their professional and ethical norms due to ideology, political aspirations and financial conflicts that place their own self-interests over the interests of the public.

An ethical and legal foundational duty imposed upon physicians in the practice of medicine is that of informed consent. Informed consent requires that we explain the medical condition to the patient or their legal decision-maker as accurately as we can as well as the treatment options, including the risks and benefits of each, as well as the risks and benefits of not undertaking any treatment. It is an abuse of the informed consent process to be untruthful or to manipulate patients to undergo treatment that is ill-advised or that places the physician’s interests over those of the patient. Doing so not only has the potential to harm patients, but undermines the public trust in the medical profession.

There is no doubt that an unscrupulous physician can harm many patients in their medical practice. But, the potential number of patients harmed will be constrained by the physical limitations of how many patients a busy physician can see and provide dangerous advice to. On the other hand, social media has enabled unscrupulous physicians to reach a much wider and broader audience, and those readers or listeners have the opportunity to further amplify these messages among those in their social networks, potentially harming far greater numbers of people.

As the article I cited above indicates, “approximately one-third of the more than 1,100,000 confirmed COVID-19-related deaths as of January 18, 2023, [in the U.S.] were considered preventable if public health recommendations had been followed.” Of course, a main focus of disinformation purveyors was sowing doubt and distrust of the COVID-19 vaccines, while not communicating any of the benefits. “As of December 2022, estimated death rates for unvaccinated persons in the US were 271 per 100,000 compared with 82 per 100,000 for those fully vaccinated, yet only 69.2% of eligible people had received the full primary vaccine series, and 15.5% had received the bivalent booster.”

Informed consent cannot be attained when physicians present a medication or treatment as perfectly safe without acknowledging potential side effects and adverse effects, nor when a medication or treatment is promoted as wholly ineffective or dangerous without acknowledging the potential benefits, nor when a medication is promoted as effective when the weight of the evidence fails to establish benefit and the FDA and the pharmaceutical company that produce and distribute the medication release public statements discouraging the use of the medication due to lack of effectiveness. In cases where a medication or treatment has benefits that outweigh the risks at the population level, a physician who knowingly promotes those medications or treatments to the public as dangerous and of no benefit is using their medical degree, license, education and training, board certification and/or expertise to manipulate people’s medical decisions at the best and harm people at the worst, in a manner that is always immoral, unethical and unprofessional. I have never read a medical practice act that didn’t prohibit these behaviors.

This focus on excess deaths in the above article resulting, in part, from disinformation campaigns, fails to capture the full breadth of harm from COVID-19 disinformation. We now know that these reported deaths undercounted the total deaths, because deaths as a consequence of COVID-19 are increased in at least the 12 months that follow recovery from the acute infection, but are often not attributed to COVID-19 in death certificates when the death occurs more than 30 days following the acute illness. Further, deaths, in of themselves, fail to capture the full impact of the harms – the consequences of the loss of a spouse to the remaining spouse, especially when the spouse who died was the main financial support for the family and source for health insurance, nor the impact on children when the death is that of a sibling or one or both parents or their caregiver. Further, death counts fail to measure the financial impact to families when the family member required a prolonged hospitalization or required prolonged follow-up medical services, when the affected family member develops Long COVID and no longer can work or must reduce the amount they work, and other consequences of COVID-19 short of dying. There are other long-term potential health consequences of SARS-CoV-2 infection that we don’t yet fully recognize or understand and that have not yet been quantified.

The Legal Issues

There are several potential legal barriers that must be overcome, but they are not insurmountable.

1. First Amendment protections for speech.

The First Amendment provides for the protection of some, but not all speech. The intents of promoting the marketplace of ideas and debate, especially debate of a political nature, are cherished rights of a free nation and democracy. While the jurisprudence around the First Amendment is not complete (e.g., there remains little guidance around the category of what is commonly referred to as professional speech), nor even always consistent, it is clear that not all speech is entitled to the same degree of protection, and some speech is not protected at all (e.g., obscenity, child pornography, and certain hate speech). Furthermore, even some protected speech can be regulated if there is a compelling government interest and the restriction is narrowly tailored to satisfy that interest.

Examples of where restrictions on free speech have been permitted include speech in courtrooms (one cannot successfully defend a charge of lying under oath (perjury) with a First Amendment defense, nor would the First Amendment allow a defendant to speak over a judge or a witness in a proceeding), false advertising, mislabeling of medications, defamation (slander and libel), impersonating a police officer, and making terroristic threats.

One can see a recurring pattern that tends to characterize speech for which restrictions are constitutional – those areas of speech that cause or may cause harm to others:

• perjury – harm to the effective administration of justice, including the potential for wrongful convictions and imprisonment of defendants;
• false advertising – financial harm to purchasers;
• mislabeling of medications – physical harm to those who take those medications;
• defamation – harm to another’s reputation and potential financial harm to a business;
• impersonating an officer – potential physical harm to someone wrongfully detained; and
• terroristic threats – harm to someone’s security and rights to be left alone.

Also, notice most of the above examples also involve false speech. In those instances, false speech that harms has no value under the First Amendment and is entitled to no protection. Supreme Court holdings in the ‘70s and ‘80s included such statements as “[u]ntruthful speech, commercial or otherwise, has never been protected for its own right,” false statements “are not protected by the First Amendment in the same manner as truthful statements,” and [f]alse statements of fact are particularly valueless [because] they interfere with the truth-seeking function of the marketplace of ideas.”

However, the Supreme Court has not gone so far as to hold that all false speech is valueless or beyond the protection of the First Amendment. Although it is not explicitly clear where the Supreme Court will draw the line, we can get a pretty good idea from at least two decided cases. In one, the Court wrote that “the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.” Garrison v. Louisiana, 379 U.S. 64, 75 (1964). This holding gives us the perspective of the Court that knowingly false statements (disinformation as opposed to misinformation) could be subject to discipline without violating the physician’s First Amendment rights to free speech. Moreover, a more recent case gives us an additional insight that ties back to the examples of prohibited speech listed above. In United States v. Alvarez, 567 U.S. 709 (2012), the plurality stated: “even where the utterance is false, the great principles of the Constitution which secure freedom of expression … preclude attaching adverse consequences to any except the knowing or reckless falsehood. Although the plurality struck down the statute in question on First Amendment grounds as being overly broad in its proscription, in a separate concurring opinion by Justice Breyer and joined by Justice Kagan, these justices suggested that a similar statute, more narrowly tailored to avoid situations where a specific harm is likely to occur, could survive a legal challenge on the basis of the First Amendment. In fact, Congress amended that statute to require proof of fraud, and so far, that statute has not been successfully challenged.

In summary, the cumulative jurisprudence on the First Amendment’s right to freedom of expression would seem to allow government regulations and actions against physicians for disinformation when the following can be shown:

• the statements are knowingly false or the false statements were made with reckless disregard of the truth;
• the statements have caused or are likely to cause harm; and
• the prohibition is narrowly tailored to prevent the speech that is causing or likely to cause harm.

• Issues relating to State Medical Board jurisdiction

As I stated above, I haven’t seen a medical practice act that doesn’t proscribe unethical or unprofessional conduct. Nevertheless, various excuses have been offered by medical boards that have declined to institute investigations into complaints about licensees spreading disinformation to the public. I will list some of these excuses and explain why they fail to be barriers to investigations and discipline.

1. Excuse #1 – Offering medical advice to the public is not the practice of medicine. Of course, medical licensing boards do regulate more than “the practice of medicine,” including such things as false or misleading advertising or even taking action against licenses of physicians convicted of felonies not involving the practice of medicine. The practice of medicine is defined in each state’s medical practice act. Many statutes may need to be updated to reflect the changing nature of medical practice. Today, the practice of medicine has expanded to virtual care and telehealth services that were not technologically possible in decades past, and when available more recently, were not particularly common until the COVID-19 pandemic. If the state legislature is inclined to revise and update the medical practice act, consideration should be given to expanding the definition of the practice of medicine to encompass situations where the physician is holding themselves out to be physicians in providing medical advice to the public, including when that advice is to refrain from receiving a treatment or medication that is ordered or prescribed by a physician.
2. Excuse #2 – The state board cannot investigate or discipline a physician for conduct outside of the physician-patient relationship, and in providing medical advice on television, the internet or social media, there is no physician-patient relationship. However, state boards do this all the time. If a physician is determined to have submitted false information to the board upon which the board relied in granting the physician a license, the board can act, even if the physician has seen no patients yet. There are many cases of persons holding themselves out as physicians who are not, and the boards regularly submit cease and desist orders. Obviously, if they are not physicians, they cannot have physician-patient relationships. Further, there are instances in which physicians and charged with or convicted of crimes that have no direct connection to a physician-patient relationship (e.g., murder, child pornography or sexual assaults) in which cases the state board may discipline or suspend a physician’s license even though no physician-patient relationship was at issue.

The Plan

1. State licensing boards
2. Examine your medical practice act to determine whether the board would have the authority to investigate and discipline a physician for disinformation under current provisions, such as unprofessional conduct.
3. If not, consider whether your legislature would be willing to consider an amendment to the medical practice act to expand the board’s authority. The key guiding principle is that the licensing boards should protect the public from unscrupulous physicians knowingly presenting disinformation holding themselves out to be licensed physicians or experts in the matters that are the subject of their false statements.
4. Strongly consider posting notices to your public website and in the board’s physician newsletters that put physicians on notice that certain medical guidance being promoted to the public is false, incorrect, misleading or unsupported by the weight of current evidence. A physician’s ongoing spread of disinformation after such notice should help demonstrate the intent necessary to support disciplinary action and overcome a First Amendment challenge.
5. An even stronger support for disciplinary action can be made by sending a physician who continues to spread disinformation notice and a demand to disclose their basis for continuing to publicly promote false statements and then issuing the physician a warning if that basis is inadequate to support those false statements.
6. If the licensing board’s general counsel still feels uncomfortable in pursuing these cases of public disinformation due to the absence of a physician-patient relationship, then the publicly promoted false statements should be sufficient basis to investigate the physician’s medical practice to determine whether the physician is advising and treating patients in accordance with their incorrect advice to the public, and if so, this would form the basis for discipline without any First Amendment challenge having a chance of being successful.
7. The Federation of State Medical Boards (FSMB)
8. The FSMB should assemble expert panels to review the evidence related to the medical disinformation physicians are providing to the public and provide the basis and the studies that support the falsity of the disinformation.
9. The expert panels should provide a review of the evidence in a report that can be posted to their website and distributed to the state licensing boards.
10. The report should also identify the current or potential harms to the public that can result from the public following the disinformation advice that physicians are presenting to the public so that state licensing boards can prove that the physician knew or should have known that the statements they were providing to the public were false, but also demonstrate the harm or potential harm that could result from the public following the misguided advice. Together, this evidence should help a state licensing board to be able to overcome a First Amendment challenge in the discipline of a physician.
11. WHO and CDC
12. The CDC and WHO must remain above the political fray and remain objective without compromising their positions to outside pressure from non-experts with political or ideological agendas.
13. It is essential that the WHO and CDC present clear, easy-to-find information on their websites that reviews and synthesizes the accumulated knowledge from epidemiological data and scientific studies along with references.
14. Ideally, reviews of our accumulated knowledge would be presented concisely and without scientific and medical jargon for the public and in a more detailed and scientific manner for health care professionals. This information should be updated regularly, with a clear indication as to the date of the update, and in the review for health care professionals, there should also be an extensive list of references from which the best evidence is derived.
15. There should also be a site on both organizations’ websites where commonly spread disinformation is refuted in a clear and convincing manner. Not only must we refute this disinformation to the public, but we must provide journalists and reporters with the information needed to avoid inadvertently further spreading that disinformation and to refute disinformation and to challenge those physicians spreading the disinformation.
16. Specialty certifying boards
17. Clear statements should be made public and disseminated to all their diplomates by all specialty boards similar in nature to the joint statement by the American Boards of Internal Medicine, Family Medicine and Pediatrics provided in the introduction above.
18. Drawing from the reports recommended to be issued by the WHO, CDC, FSMB, and state licensing boards, specialty boards should convene expert panels to review the best evidence to date and publish consensus statements as to the best evidence in their fields.
19. These reports should be regularly updated, fully referenced and a clear date indicated as to when the report was last updated.
20. So too, reports should be posted as to disinformation being propagated by physicians and a clear analysis as to why it is false and/or misleading. This information should be provided on the website and in the professional publications of the board in order to place physicians spreading disinformation to the public on notice that the information they are purveying is contrary to the weight of the current evidence.
21. Specialty boards are private organizations and thus not subject to the First Amendment free speech obligations in the way governmental agencies are. Too often, specialty boards have deferred discipline to state licensing boards, which are more limited in the actions they can take than are specialty boards. Further, lack of action on the part of specialty boards may ultimately become an existential threat. Physicians seek board certification for a number of reasons. One is the mark of distinction it has represented that a physician has mastered and is current in their knowledge and skills of the specialty. Obviously, allowing board-certified physicians who knowingly convey false medical information to the public and continue to do so even after notice that their statements are not supported by the weight of the current evidence undermine the publics and the profession’s confidence that board certification is a meaningful distinction of current knowledge and expertise in the field. Another reason for board certification is to satisfy the credentialing requirements for medical staff membership or for participation in an insurance network of providers. However, the failure to discipline diplomates, including revoking board certification, will not only undermine the credibility of board certification, but also make these requirements for board certification less legally defensible, and in the end, likely result in fewer physicians seeking board certification or recertification, fewer hospitals giving weight to board certification in their credentialing process, and fewer managed care networks using board certification as a factor for the participation in their networks.
22. Professional associations and medical societies
23. Professional organizations and medical societies should also undertake efforts to disseminate to their memberships updates as to the best evidence on emerging health issues that are receiving interest by the public in the media, press and on social media.
24. Similarly, they should be proactive in attacking disinformation head on and providing the evidence as to the falsity of that information.
25. Professional associations, and perhaps to a lesser extent, medical societies, are highly dependent upon their reputations because membership is seldom required for physician employment, medical staff membership or insurance plan participation. Therefore, professional associations and medical societies should protect those reputations and censure those among their membership who persist in spreading disinformation publicly, including revoking designations of advanced standing such as fellow or master designations.
26. Hospitals
27. Hospitals are also negatively impacted by the spread of medical disinformation. Disinformation may undermine efforts to protect their own staff, decrease the willingness of staff to employ protective measures, and result in increased absenteeism, staffing shortages, increased employee health care costs, and decreased worker productivity. Hospitals are also often one of the most trusted and valued voices in their communities. They, especially non-profit, tax-exempt hospitals, must be sources of truth and must educate their communities so that those who want to protect themselves will have the best available information to do so.
28. Hospitals should consider revising their medical staff bylaws to make clear that the role of the hospital and its medical staff is to serve the needs of their communities. Those needs can only be served when people are provided with truthful and accurate information that allows them to make an educated decision based on the risks and the benefits, as well as their own personal values in deciding the best course of action for themselves and their minor children. Health care professionals should never coerce or manipulate people’s health care decisions. Doing so can negatively impact the hospital’s reputation, harm people and is inconsistent with the mission and values of the hospital. For these reasons, ongoing spread of disinformation to the public when the physician knows or should know the statements to be false, and when those statements, if followed by the public, causes or can cause harm, should be a basis to deny medical staff membership or to discipline current members of the medical staff. Providing medical staff members who are spreading disinformation with a notice of concern and allowing them an opportunity to present their evidence to support their misstatements prior to taking adverse action will provide an opportunity for the physician to be educated and, if the physician persists in their misinformation campaign, will help satisfy due process requirements.
29. If specialty boards do not also take actionable steps to put their diplomates on notice and discipline those who continue to spread disinformation, hospitals and insurance companies should consider lessening or eliminating considerations regarding board certification for medical staff membership.

Conclusion

The popular quote, “The only thing necessary for the triumph of evil is for good men to do nothing,” is apropos to the crisis of disinformation.

There is mounting evidence and a growing consensus that health disinformation spread by physicians touting their medical credentials and expertise is harmful to the public, undermines public health efforts during public health threats, and adversely impacts trust in science, public health and medicine. This conduct on the part of physicians is also contrary to the professional and ethical guidelines of our profession.

Disinformation campaigns have benefitted from significant funding and coordination. Efforts to combat disinformation will not succeed with individual scientists and physicians carrying the responsibility on their shoulders. It is critical that the WHO, CDC, FSMB, state medical licensing boards, national specialty boards, professional associations and medical societies, and hospitals all step up and reinforce each other’s efforts to report and update the weight of the current evidence, to call out disinformation and to take action against those physicians who continue to repeatedly spread disinformation to the public on television, radio, cable networks, the internet and social media.

Concerns about legal challenges can be overcome in a number of ways as presented above. The keys to success are that these organizations must be clear about the weight of the evidence; update that evidence; refute misinformation and disinformation; place physicians on notice about their spread of disinformation; offer those physicians an opportunity to provide the evidence to support their positions, but if not persuasive and the spread of disinformation continues, then all of these organizations should take the relevant action against these physicians without deferring to other organizations to do so. The keys to successful actions are demonstrating that (1) the physician knew or should have known that their statements were false, inaccurate or misleading, or that the physician acted with reckless disregard as to the truth or falsity of their statements; and (2) that the statements harmed or had the potential to harm members of the public who followed the advice provided by the physician.

This proposed response to disinformation does not deprive physicians of their ability to challenge the medical consensus or to raise concerns. For example, one physician repeatedly reported to the public that he had seen a marked uptick in the number of cancers in his practice following the availability of COVID-19 vaccines. The proper venue to disclose his findings would be to the FDA, the CDC, or his professional organizations or to organize a clinical study to investigate the issue. It is not responsible behavior to use this assertion that was unverified and unvalidated to scare the public, when that physician would not have a basis for establishing COVID-19 vaccinations as the cause as opposed to SARS-CoV-2 infections themselves or other potential causes, was promoting other false information, a similar increase in cancer rates had not been identified anywhere else in the world despite the world-wide distribution of these vaccines, and the fact that this physician was later alleged to have made cancer misdiagnoses. Physicians remain free to express concerns or fears to the public, however, they need to be clearly identified as such, rather than represented as fact.