Lawmakers on Monday introduced a bill that could penalize health care workers if they make false health claims.
The bill, which passed the Assembly’s Health Committee on a party-line 5-3 vote, with Rep. Margie Donlon (D-Monmouth) abstaining, would allow boards that oversee the health care profession to bring misconduct charges against doctors and others who make false health claims to patients.
The bill is intended to combat misinformation that has increased in the medical field in the wake of the pandemic, said bill sponsor Rep. Herb Conaway, D-Burlington.
“Unfortunately, judging by their public comments about vaccines and other questions, there are many licensees who do not appear to be taking their responsibilities as health care professionals seriously,” said Conaway, the committee chairman. “This misinformation makes it very difficult for public health agencies to actually do their job, which is to improve the public health.”
The bill does not provide for explicit penalties for misinformation misconduct, instead allowing each committee to draft its own rules.
A range of anti-vaccination activists opposed the bill in committee, arguing that it would impede doctors’ ability to treat patients.
“This bill would stop doctors from doing something if the mainstream media says they can’t do it,” said Jennifer Brown, a nurse practitioner.
Brown noted that the antimalarial drug hydroxychloroquine was approved as a treatment for COVID-19 in the very early months of the pandemic, but the Food and Drug Administration revoked its emergency use authorization for hydroxychloroquine, which she argued would limit viable treatment options and force people to get COVID-19 vaccinations.
She added that the antiparasitic drug ivermectin, which former President Donald Trump recommended as a treatment for the virus, should also have been allowed.
Studies have found that neither drug is effective in treating COVID-19.
The original version of the bill defined misinformation as “a false health-related factual assertion that is contrary to medical standards and inconsistent with contemporary scientific consensus.” Midway through Monday’s hearing, Conaway, a physician, asked for an amendment to remove the second part of that definition, beginning with the word “and.”
Many witnesses cautioned that scientific consensus can change over time.
Renee Kohanski, a Somerset County psychiatrist who represents the College of American Physicians and Surgeons, a conservative nonprofit that has endorsed hydroxychloroquine as a treatment for COVID-19, pointed to past beliefs that pathologize women’s independence, citing the case of Elizabeth Packard, whose husband mistakenly committed her to a psychiatric hospital in 1860.
Under Illinois law at the time, where Packard was incarcerated, evidence of mental health problems was not required for the institution of married women.
“That may seem barbaric, but if a psychiatrist at the time had challenged the language in this bill, it would have been within the scientific consensus of the time and the psychiatrist would have been subject to disciplinary action,” Kohanski said. “Consensus and scientific inquiry are inherently fluid.”
Conaway said the bill would not prohibit doctors from prescribing drugs off-label or exploring new treatments.
“There’s nothing in this bill that would stop that from happening,” he said. “People are nervous about it. I’m not sure why they’re nervous. And this member has no intention of engaging in a process that would interfere with the scientific process or the ability of medical professionals and scientists to engage in research.”
Other critics charged that the legislation would face constitutional hurdles, pointing to a similar law in California that allows regulators to punish doctors who spread false information about COVID-19.
A federal judge in California issued an injunction last January, finding the law vague and unconstitutional, but, contrary to arguments made by witnesses on Tuesday, did not rule on free speech claims made by five doctors who sued to invalidate the law. California has since repealed the law.
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