Here is a brief summary of Ken Stoller’s lawsuit against the San Francisco City Attorney (SFCA):
The SFCA held a press conference announcing that he had issued an administrative subpoena on Dr. Ken Stoller for his medical records all his patients throughout the state for whom he has written a vaccine medical exemption. The basis of the subpoena is an alleged investigation about whether Dr. Stoller’s exemption writing practices is a public nuisance, presumably in light of the uptick in measles cases in the Bay Area and throughout California.
We think this is a bogus investigation and therefore, we filed a lawsuit to quash the subpoena and asked for other relief.
There are several critical and incontrovertible facts which show the bad faith behind the SFCA’s so-called investigation.
The primary vector or cause of the Bay Area measles outbreak is not medically exempt unvaccinated school children. Rather, it is adults who traveled abroad. Here is the news article which reports that 28 of the 38 Bay Area measles cases were in adults traveling abroad. https://www.sfchronicle.com/health/article/Measles-cases-jump-to-38-in-California-amid-13795838.php.
There is no published data about the 10 children yet. However, extrapolating from the genetic test results of the 2015 Disneyland outbreak which established that almost forty percent of the 194 measles cases were from the vaccine. https://doi.org/10.1128/JCM.01879-16,
and, adding the most conservative numbers of the MMR primary vaccine failure rate of 10% https://www.ncbi.nlm.nih.gov/pubmed/15176719, it is likely that almost half of the 10 measles cases were in children who got it either from the vaccine, or because the vaccine didn’t work on them.
Conclusion: Since the overwhelming majority of the San Franciso Bay Area measles cases are not from the medically vaccine exempt school children, to target them as a potential public nuisance is irrational and suggests that it is just a pretext.
On April 24, 2019, Senator Pan related to his Senate Health Committee the Medical Board’s concern that it was having difficulty obtaining the patient medical records from exemption writing physicians, and complained about the possibility of fake exemption writing going on.
14 days later, on May 8th, the SFCA issued a subpoena for all of Dr. Stoller’s records and other information concerning the medical exemptions he has written throughout the state. (There would be nothing stopping the SFCA from sharing these records with other government agencies.) The SFCA’s public nuisance investigation is based on the same false “fake exemption” narrative Senator Pan has been using as his justification for SB 276.
The SFCA’s attempt to use the public nuisance laws as a basis of investigating a physician’s medical practice and seeking medical records and genetic test information is unprecedented in California or anywhere else in this country. The fact that the initial request is for deidentified records does not mitigate the intrusion into the patients’ rights to control their personal medical information. The SFCA’s office, unlike the Medical Board, is not obligated to protect and not disseminate the information to other government agencies, which given its resources, it can easily reidentify the patients’ identity, and then target the families, which has been suggested by a possible SFCA ally.
The original version of SB 277 proposed by Senator Pan limited vaccine medical exemptions to CDC contraindications. Because of push-back, he was forced to broaden exemptions far beyond the few CDC contraindications. The law which was passed allows for considerations, including without limitation, “family history.” According to Senator Pan, even a “genetic association, with a sibling, cousin, [or] some other relative [could justifiy a finding that] it’s not safe for a vaccine . . .” and “even if that child has not yet suffered harm, then they [the physicians] an exercise their professional judgment to provide an exemption” (Senator Pan’s recorded testimony explaining SB 277 to his fellow Senators)
In SB 276, Senator Pan has changed his mind and now seeks to limit vaccine medical exemptions to the same limited CDC contraindications which he tried and failed to have included in SB 277. His main PR tactic is to promote the false “fake exemption” narrative by relying on the fact that Dr. Stoller and others like him are writing medical exemptions based on these broader factors referenced in SB 277, which Senator Pan himself blessed in order to pass SB 277.
These facts and circumstances suggest that the SFCA’s unprecedented subpoena and public nuisance investigation of Dr. Stoller’s medical practice is part of a campaign to pass SB 276 by advancing the false narrative that there are a few doctors writing false or fake exemptions. The reality is that these doctors are following the law as interpreted by Senator Pan himself. Unhappy that these physicians have taken his words literally and seriously, Senator Pan is now vilifying these physicians to pass what he could not get passed in SB 277. He is now going even further with SB 276 by having state government employees who have never met or spoken to the patient and family make a critical and potentially life-altering medical decision.
The Legislature should reject SB 276, and we hope that the courts will stop the SFCA’s attempt to misuse the public nuisance laws to violate the privacy and autonomy rights of Dr. Stoller’s patients.
Rick Jaffe, Esq.