False COVID-19 Medical Advice: Is the Doctor or the Hospital at Fault?
Last month, California’s legislature approved a bill allowing regulators to punish doctors for spreading false information about COVID-19 treatments and vaccinations. This decision puts hospitals and others directly in the line of fire between free speech and informed consent. Lots to unpack!
FREEDOM OF SPEECH?
According to the Supreme Court’s 1919 Schenck v. U.S. decision, the standard for deciding whether an expression is permissible or not is whether the speech presents a “clear and present danger.” It was in this decision where Justice Oliver Wendall Holmes included the line that became a cliche about not being able to shout FIRE! in a crowded theater.
Later, the precedent narrowed in 1969’S Brandenburg v. Ohio, which determined that speech can only be prosecuted if it is intended to incite “imminent lawless action.” The important distinction here is a shift from clear and present danger (very broad) to imminent lawless action (very narrow).
The California law in question specifically designates spreading false or misleading information as “unprofessional conduct,” resulting in punishment by the Medical Board of California. This would impact the doctor’s license to practice medicine in the state by either suspending or completely revoking it. The decision is driven by the AMA (American Medical Association) and other groups that claim the misinformation by medical professionals resulted directly in thousands of hospitalizations and deaths.
In some ways, this legislation is not different than banning someone from screaming FIRE! in a crowded theater. The common thread is that freedom of speech is not absolute, and when public safety is threatened, most agree that protecting people trumps freedom of speech.
ROLE OF THE EMPLOYER
Doctors are recognized authorities and subject matter experts. When a doctor offers public guidance that contradicts accepted medical science, employers need to care.
If a doctor gives public guidance contrary to established science and medical best practice during a pandemic, and as a result people die, is the institution the doctor represents liable?
Does the hospital in our example have the right to censor or even terminate the doctor for doing this?
Do they have an obligation to manage the speech of the doctor proactively?
Should they have a policy in place prohibiting a staff member to offer an opinion contrary to one held by the institution?
In answering these questions, it's important not to make a judgement on how you personally feel about pandemic-related guidance. Instead, consider what obligation an institution has or does not have to manage the guidance. And what happens if they choose to take a blind eye towards it?
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MEET THE AUTHOR
J Rollins is the co-founder and CEO of ETHIX360. J is a well known leader and innovator who has served on senior leadership teams ranging in responsibility from Chief Revenue Officer, Chief Marketing Officer, SVP of Product Strategy and Chief Operating Officer.
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