Doctors’ ‘free speech’ bill raises public safety questions

In a nod to the ongoing tug-of-war over the COVID-19 pandemic, a Republican lawmaker wants to bar state regulators from going after doctors even if they tout medically questionable treatments or cures.

Rep. Brad Drake, a Republican from Eucheeanna, has filed so-called “free speech” legislation that would require the state or its licensing boards to prove by clear and convincing evidence that a health care provider’s social media posts caused harm to a current patient before revoking — or threatening to revoke — a license, certificate, or registration of a health care practitioner.

House bill 687 allows the state to sanction doctors for social media posts that caused direct physical harm to current patients. But in order to prevail the state or licensing board must prove beyond a reasonable doubt that the posts caused the harm.

The Florida Department of Health or its licensure boards could also be liable for up to $1.5 million to any doctor who suffers direct or indirect damages as a result of an unsuccessful regulatory effort.

Some expressed concerns the bill would muzzle medical boards tasked with holding physicians medically accountable.

“It interferes with regulation and ties the hands of the boards,” said Georges Benjamin, executive director of the American Public Health Association. “No board is going to go after someone.”

In addition to impacting physicians, the bill applies to dentists, nurses, pharmacists, and about 20 other health care providers.

The bill was filed as news broke that ophthalmologist Howard Goldman filed a complaint against state Surgeon General nominee Joseph A. Ladapo. Goldman’s complaints allege that Ladapo has made false public statements.

It also comes as medical societies have threatened to sanction providers who promote misinformation regarding the safety of the COVID-19 vaccine or promote treatments that are proven ineffective such as chloroquine and hydroxychloroquine.

To that end, as drafted, the bill also applies to the American Association of Physician Specialists and the American Board of Interventional Pain Physicians.

Attempts to contact Drake for this story were unsuccessful.

“It’s well-intentioned but flawed,” health care lawyer and lobbyist Chris Nuland told Florida Politics. Nuland said the Legislature cannot dictate how those medical organizations operate.

Tallahassee lawyer Allen Grossman agrees.

“I don’t know what authority the Florida Legislature would have to prohibit them from doing what they want to do,” said Grossman, a former assistant state attorney who served as the Board of Medicine’s chief legal adviser for 10 years before leaving to enter private practice. “I do think there’s a lot of legal issues as to what they can and can’t do here.”

In addition to the $1.5 million fine, the state could be on the hook for another daily administrative fine of $500.The state would be required to pay health care providers $500 each day it fails to provide them with a copy of the complaints.

Regulatory boards such as the Florida Board of Medicine operate on the revenue collected from licensure and regulation fees, and not general revenue.

“It doesn’t seem like a wise way to spend the money to regulate professions,” said Grossman, now a private practice lawyer who specializes in administrative laws.

There was no Senate companion to HB 687, which would apply to doctors as well as nurses, massage therapists, midwives, physical therapists, naturopaths and speech pathologists and scores of other providers.

This is not the first time the Republican-led Florida Legislature is being asked to delve into free speech and the rights of health care providers. In 2011 Florida passed a law that essentially banned physicians from asking patients about gun ownership or documenting information about gun ownership in patients’ medical records. The law also prevented insurance companies from discriminating against gunowners.

A coalition of physician groups joined efforts with the American Civil Liberties Union and immediately challenged the law and after six years of legal wrangling a federal appellate court in Atlanta struck down the restrictions on physicians.

But they remain in statutes. So does a provision in the 2011 law that bans insurance companies from discriminating against gun owners.

Former Board of Osteopathic Medicine member and Tampa Dr. Joel Rose noted the disparate positions on free speech between the 2011 law and the 2022 proposal.

“Pediatricians are worried about safety for a child in a household. Or even just being responsible to make sure that if you do have weapons that they are properly stored,” Rose said, adding the 2011 law, “stifled the free speech of physicians, right? But then I thought, well there are people on different sides of the fences that are going to support what their views are.”