Oliver Kim (University of Pittsburgh), Limitations of Medical Licensing: The Role of State Boards of Medicine in the Dissemination of Medical Misinformation, 16 Northeastern U. L. Rev. (2024):
The COVID-19 pandemic put a spotlight on the longstanding issue of dissemination of medical misinformation. As our understanding of the virus rapidly evolved, public health officials and policymakers clashed with certain health professionals who expressed not only skepticism but hostility to efforts to address the public health emergency. States regulate the practice of medicine by various health professionals—physicians, nurses, pharmacists, and many others— by granting a license to operate within a scope of practice set by statute. Critics question how health professionals could circulate misinformation and even disinformation while retaining their licenses. Shouldn’t physicians face consequences for disseminating misinformation capable of harming their patients and the general public? Shouldn’t those whom society trusts to hold a license to practice medicine be held to high standards? Such laws are part of states’ traditional police powers to protect the public from harm. In addition to private enforcement through tort claims, states also entrust boards to credential, license, and discipline health professionals. As representatives of health professionals themselves, boards can distinguish between practice variations (for instance, off-label use) and negligent acts that threaten patient and public health. But as this Article demonstrates, state medical boards face legal and policy obstacles to take such actions. This Article consists of three parts. Part I provides an overview of the role and function of state medical boards. Part II will discuss the role of public policy in how physicians convey medical information. Finally, Part III will explain the limits of boards and licensing as a means of reducing the spread of misinformation.