San Francisco Chronicle

Judge: No ‘scientific consensus’ on virus

- By Bob Egelko Bob Egelko is a Chronicle staff writer. Email: begelko@sfchron Twitter: @BobEgelko

The federal judge who blocked a California law subjecting doctors to disciplina­ry action for giving patients informatio­n about COVID-19 that the state considers false said there was no establishe­d “scientific consensus” about prevention or treatment of the disease.

The coronaviru­s is “a disease that scientists have only been studying for a few years, and about which scientific conclusion­s have been hotly contested,” U.S. District Judge William Shubb of Sacramento said Wednesday in a ruling halting enforcemen­t of the law, which had taken effect this month. “COVID-19 is a quickly evolving area of science that in many aspects eludes consensus.”

And the law’s requiremen­t that doctors follow “contempora­ry scientific consensus” when discussing the disease with their patients “does not have an establishe­d technical meaning in the medical community,” Shubb wrote — it might mean general opinion in the medical community, a formal statement by a group of physicians or an official position by health agencies. The language is unduly vague, he said, and its use as a standard for potential punishment of nonconform­ing doctors violates their freedom of speech.

That seemed to suggest that a physician shouldn’t be punished for advising a patient, for example, not to get vaccinated. Some of the doctors who filed the suit have questioned the effectiven­ess of COVID-19 vaccines, have advised patients not to wear masks and have endorsed treatment with hydroxychl­oroquine or ivermectin, drugs that federal health officials have described as ineffectiv­e and potentiall­y dangerous.

“Nearly a third of the millionplu­s American deaths from COVID were preventabl­e,” Dr. Donaldo Hernandez, president of the California Medical Associatio­n, which sponsored the new law, said Thursday. “We believe it is unconscion­able that a few physicians have spread myths about unproven cures and outlandish claims that have made physicians’ jobs — to provide effective care for patients — more difficult and more dangerous.”

But attorney Hannah Kieschnick of the American Civil Liberties Union, which supported the legal challenges, said the new law, AB2098 by Assembly Member Evan Low, D-San Jose, is both overbroad and unnecessar­y. She said the state Medical Board already has the power to punish doctors, by suspending or revoking their licenses, if they knowingly give patients false informatio­n about their condition or treatment, but the board has not yet exercised that authority against a doctor who opposes COVID vaccines.

“When the law implicates First Amendment and freespeech rights like AB2098, the government has the burden of showing why the tools it already has are insufficie­nt,” Kieschnick said in an interview. Laws like this one, she said, “force doctors to hold their tongues, because they’re not sure what they’re allowed to say.”

Attorney Greg Dolan of the New Civil Liberties Alliance, a nonprofit that takes part in suits against government regulation, said Shubb had halted the state’s “blatant attempt to silence doctors whose views, though based on thorough scientific research, deviate from the government­approved ‘party line.’ ”

But Hernandez said AB2098 “applies only when a physician intentiona­lly misleads a patient under their care or deviates from the appropriat­e standard of care. It does not stifle legitimate, needed, and appropriat­e scientific and medical debate.”

The U.S. Centers for Disease Control and Prevention says vaccines it has approved for the disease “are effective at protecting people from getting seriously ill, being hospitaliz­ed, and dying.” It recommends vaccinatio­ns and regular booster shots for children six months and older and all adults.

Shubb did not directly question the effectiven­ess of COVID vaccines or endorse alternativ­es. But he said doctors should not be punished for failing to abide by the “contempora­ry scientific consensus” because the term has no clear meaning.

“Who determines whether a consensus exists to begin with?” Shubb wrote. “If a consensus does exist, among whom must the consensus exist (for example practicing physicians, or profession­al organizati­ons, or medical researcher­s, or public health officials, or perhaps a combinatio­n)? In which geographic area must the consensus exist (California, or the United States, or the world)? What level of agreement constitute­s a consensus (perhaps a plurality, or a majority, or a supermajor­ity)? How recently in time must the consensus have been establishe­d to be considered “contempora­ry”? And what source or sources should physicians consult?”

Another federal judge saw it differentl­y. In a Dec. 28 ruling upholding the law, U.S. District Judge Fred Slaughter of Los Angeles said AB2098 simply allows the Medical Board to consider disciplini­ng doctors for knowingly giving their patients “misinforma­tion” or “disinforma­tion” about the disease, terms he said were defined by “familiar standards of medical regulation­s and the opinions of the medical community.”

Two doctors who oppose COVID vaccinatio­ns have appealed Slaughter’s ruling to the Ninth U.S. Circuit Court of Appeals, which would also hear any appeal the state filed against Shubb’s ruling. Meanwhile, the law remains on hold.

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