Podcast Recap:Will a SCOTUS decision on COVID-19 misinformation affect the ability to practice medicine?
Episode 77 of the FLATLINING Podcast
In this episode, Matthew and Ron discuss an upcoming ruling from the Supreme Court on whether COVID-19 misinformation is protected speech and they take a quick look at the new annual report from JUST capital, a nonprofit investment organization that has a “mission to demonstrate how just business – defined by the priorities of the public – is better business.” JUST capital looks at large U.S. Companies in areas like wages, U.S. Job creation, how the company prioritizes accountability to stakeholders, supports workforce training and retention, and beneficial work/life balance. Matthew brought this report to the discussion since two large health insurance companies made the top Ten.
Matthew reported that Cigna came in at number six and Elevance at number eight on the annual list. He then posed the question to Ron about his thoughts on the list considering some of the recent legal actions taken against Cigna. Ron pointed out that in his review most of the companies were more in the tech or white-collar sector, not tobacco or other manufacturing. He then followed up that he is a bit skeptical anytime a new poll comes out and pointed to the inaccuracies of the last couple of national elections. The discussion continued with the team sharing experiences of interacting with Cigna. Ron remembered an anecdote from his days at Cigna, where a senior employee once shared with him an unflattering acronym for Cigna. But he acknowledged that a lot of big companies usually have some of those types of jokes, but at the end of the day, he concluded that he could not see Fulcrum clients rating Cigna high on the list of “Just” companies.
Matthew shifted the conversation to an article in Statnews, about a case in front of the Supreme Court of the United States (SCOTUS). It will look at whether the federal government coerced social media giants to remove or downgrade posts that questioned vaccine safety, the origins of the pandemic, or shutdown measures. Matthew referenced recent state laws in states like California where you cannot spread misinformation about COVID-19 or other medical advice and possibly be under threat of losing your license.
Ron acknowledged the tough decision for the justices when discussing our right to free speech but shared that legal experts had explained to him that our rights here in the U.S. are not “unfettered”. All that said, Ron pointed out that one right can’t infringe on another person’s right. He thinks that this challenge is at the heart of the conversation, and in the context of medicine, he asked “Should physicians be allowed to express their clinical opinion even when it may fly in the face of other clinical opinion[s]?” Ron pointed out that during the pandemic you could have had one doctor stating his clinical opinion even when there were many physicians saying something different. He asked that you have to ask where do you draw the line of telling them they can’t say that. He also posed the question from the other position, what recourse does someone have when it is believed a doctor is spreading “misinformation”?
Ron continued and said that this brings us now to malpractice, where a patient has recourse if they think the physician was negligent. In the case of COVID, where a physician may have recommended that someone not get the vaccine and die, does the same standard apply when the person is not directly under that physician’s care? Ron admitted that this is a sticky issue, but in his opinion, he doesn’t like limiting this kind of free speech. He said figuring out who would be the arbitrator of this kind of speech would be very difficult. It does, he said, beg the question, of what responsibility do physicians have when they voice their opinions on social media?
Matthew shared a previous discussion the team had about a physician who challenged the established understanding of the pandemic early on and went as far as to publish a book under a pseudonym. He claimed that he would be vindicated in the end. Ron pointed out that when government tries to stop certain speech there is a segment of the population that will automatically believe it because the government is trying to curtail it.
Matthew surmised that this ruling could have a larger effect, and asked Ron if the damage was already done. Ron said he thought it might be, because people think the government tried to restrict free speech, and therefore a level of skepticism has crept in.
Ron points out that social media companies are private companies, not like broadcasters, so they can restrict people’s access to their platforms or not. He shared an anecdote when his father owned a bar and they could restrict who was there if they were not discriminating. He thinks that these platforms may be able to restrict speech if it is non-discriminatory and so on, but in the same way, he felt that if the government wanted to tell him to not post something or remove it, he did not think they had a right to do that either.
The conversation wraps up with a discussion on the state’s ability to curtail or regulate speech on medical issues that could impact a physician’s license. Ron speculated that since states already have oversight of the medical licensing process, they could, but just like any other issue that would need to come before a state medical board, there is due process. Ron closed with and offered that if a state were to be too restrictive for a physician, he pointed out that the beauty of our country is that the physician could move to another state that is more aligned with their viewpoint.
This closed out the discussion for this episode, you can listen to the full podcast and other episodes of FLATLINING here, and be sure to share with your colleagues and subscribe if you have not already.