Physicians Rarely Disciplined by Medical Boards for Spreading Misinformation

Being disciplined for spreading misinformation made up less than 1% of medical board sanctions, making it the least common reason for physician discipline, a cross-sectional study found.

Among 3,128 medical board disciplinary proceedings involving physicians in the top five most populous states, sanctions for spreading misinformation to the community only occurred six times (0.1% of offenses) and spreading misinformation to patients under treatment occurred 21 times (0.3%), reported Richard Saver, JD, of the University of North Carolina School of Law in Chapel Hill.

Conversely, physician negligence (28.7%), problematic record-keeping (14.9%), and inappropriate prescribing (13.5%) were the most common reasons for discipline, Saver reported in JAMA Network Open.

“Misinformation offenses are not just at the bottom, but exponentially at the bottom compared to the other more common reasons medical boards are disciplining physicians,” Saver told MedPage Today.

During the early days of the COVID pandemic, there were alarming stories about physicians spreading falsehoods, Saver said, some of which resulted in public outcry. For instance, Stella Immanuel, MD, the highest prescriber of hydroxychloroquine and ivermectin during the pandemic, and Simone Gold, MD, JD, of America’s Frontline Doctors, are among physicians who openly promoted discredited COVID treatments, yet faced little punishment.

“As I started to look into it as a health lawyer, I realized it’s actually a very complicated regulatory matter, and that there are many potential barriers that medical boards might have to overcome in addressing this issue,” he said.

Saver also found that the frequency of disciplinary actions related to COVID-19 care, even if not about misinformation, were low (0.2%) and sanctions were relatively light. Additionally, physicians who spread falsehoods to patients faced discipline three times as often as those who disseminated misinformation to the community, “even though community-directed misinformation may pose greater harm overall,” he wrote.

“It is easier to regulate false communications to patients because that crosses the line from speech to conduct, and potentially, the inappropriate practice of medicine,” Saver said, noting that the First Amendment complicates things.

Spreading falsehoods to the community isn’t something medical boards have traditionally dealt with, and boards are often driven by complaints, which occur more often with adverse patient experiences.

Ultimately, Saver concluded that “limited discipline of physicians for spreading medical misinformation occurred,” and study findings suggested deeper problems and raised “doubt as to whether medical boards are institutionally suited to police medical misinformation.”

In an accompanying editorial, Megan Ranney, MD, MPH, of the Yale School of Public Health in New Haven, Connecticut, and Lawrence Gostin, JD, of Georgetown University Law Center in Washington, D.C., cautioned against Saver’s conclusion and argued that the onus shouldn’t necessarily fall on medical boards, especially because physicians are protected by free speech.

“Because the First Amendment protects information conveyed between health professionals and patients, licensing boards cannot impose sanctions without clear and compelling reasons,” they wrote. Instead, “medical board sanctions should be rare and used only if physicians consistently spread verifiably false information, in their professional capacity, that has demonstrated potential for harm.”

The editorialists also noted that other regulatory agencies — like the FDA and the Federal Trade Commission — also discipline the worst purveyors of misinformation, which they said might be a more appropriate response than medical board sanctions.

For the study, Saver analyzed all publicly reported licensure actions against physicians in the top five most populous U.S. states: California, Florida, New York, Pennsylvania, and Texas, from January 2020 through May 2023 (except for Texas, which was through March 2022). Based on a literature review, a list of 11 codes was developed to capture possible offenses leading to medical board discipline. The primary outcome was medical board disciplinary action that resulted in a sanction.

Saver noted four limitations, including that the medical board data only addressed licensure sanctions imposed after some form of administrative adjudication concluded and therefore may not show the full extent of their response to physician-spread misinformation. The frequency of physician-spread misinformation is also unknown, so it’s possible that the low levels of discipline reflect the rarity of this behavior. Third, variation in disciplinary activity likely exists between states, though the five reviewed were politically and geographically diverse. Lastly, instances of misinformation may be sanctioned in later medical board cycles.

Future research could analyze other states to add to the generalizability of these findings, as well as dig into the reasons why boards rarely discipline misinformation, Saver said.