In the name of combating misinformation, the Mississippi State Board of Medical Licensure recently issued a new policy that vaguely prohibits medical misinformation from being spread by doctors, particularly on social media. There are several unanswered questions surrounding the policy that are unclear in the wording of the policy.
Under Section 73-25-29 of the Mississippi Code and other sections of the law, the different types of unprofessional misconduct that are grounds for disciplinary action against a physician are specified in fairly clear language. Such grounds could include narcotics violations, falsifying documents, conviction of a felony, and other clearly defined violations. While the Board is given a broad degree of discretion, the state Code is fairly specific.
Contrasting with this specific language is the vague use of misinformation as grounds for discipline, which becomes especially complex when the dynamic of social media is named in the written policy. The new policy states that physicians "must share information that is factual, scientifically grounded and consensus-driven." Furthermore, the policy states that "physicians who generate and spread COVID-19 vaccine misinformation or disinformation are risking disciplinary action." This language is unclear, especially in the social media world of "Likes," "Shares," and "Retweets."
For instance, a physician might reshare, or even write, a Facebook or Twitter post containing content that would be deemed as misinformation by the consensus. However, the post might also have some helpful information that would not be deemed misinformation by the consensus. Could the physician be disciplined?
While some would have us believe that social media posts and general public discourse can be separated into nice, neat categories of "Accurate Information" and "Misinformation," it is not even remotely that simple. Rather, in a world of imperfect people, much of the content of social media and elsewhere is partially accurate and partially inaccurate, but free-thinking adults generally have the ability to discern between the two. Furthermore, even a casual review of the public discourse since the advent of Covid, would reveal that even the consensus itself has changed multiple times.
For instance, many will remember when the proposition that Covid leaked from a Chinese lab was officially labeled by many as "misinformation" and a wild conspiracy theory, leading Facebook itself to ban such content. But in a matter of months, investigations and Congressional testimonies suggested that this was a very real possibility. Facebook lifted the ban, follow-up investigations were initiated, and those who had been silenced were no longer labeled as distributors of misinformation.
If the medical Board had an officially written disinformation policy based on consensus, and it had actually disciplined a physician for spreading the lab leak theory, would it have had to walk back on its actions? Worse, would the Board give restitution to the physician for the financial losses incurred by the wrongly imposed discipline?
Covid is a relatively new virus, and the consensus has changed as new information is being discovered. It is not at all far-fetched to suggest that this will happen again, and some who are currently outside the consensus will be shown to be correct as new information is brought to light.
All of these questions and complexities are important factors to consider. Some may claim that defining misinformation could be accomplished on a case-by-case basis during disciplinary hearings. But the vagueness of the language should not mean that physicians have to face a disciplinary hearing before they even have a full clarification on whether or not the Board’s misinformation policy was violated.
Rather than issuing policies that leave so many unanswered questions, policies should be clear on what constitutes misconduct that would lead to discipline. These are challenging times, and no one has all of the answers. Public discourse should be permitted to have the input of multiple viewpoints, especially when no final consensus has even been established. Rather than leaving physicians with little clarity for their social media use by employing vague misinformation rules, public policy should be clear so that all parties have the foundation of a clear rule of law.