A few months ago, Dr. Ron Kennedy made a big splash in the Cali vaccine concerned community by announcing that he was suing the California Medical Board and its individual members, because the board was obtaining copies of his medical exemptions from the schools.
I understand how a doctor can assert the privacy rights for his patients’ medical records which the doctor posseses. But I never understood how a doc could assert the patients’ rights over a school record (which is what a vaccine exemption letter becomes once it gets to the school). Sure, the doc may have signed the exemption, but it’s obviously not HIPAA protected once it’s filed in the school. School records are not covered by HIPAA, but are privacy protected under another law, FERPA, but that doesn’t have anything to do with a doc or his right to protect patient medical records in his possession. But who knows, maybe those folks know something I don’t.
The case was originally filed Sonoma County, but had to be removed to San Francisco County because that’s one of the only four counties the board can be sued in. (I don’t rule out a clever tactical decision to file in the wrong county.)
From what I can tell, that case is in some kind of administrative twilight zone like limbo. I can’t access the records on the superior court’s web site and it seems like the case might stay in limbo for some time. (I can’t rule out the possibility that it’s part of a clever tactic.)
But that administratively mislplaced lawsuit is not really what this post is about.
After receiving the exemptions, the board subpoenaed the records of the patients from Kennedy. He refused to comply, asserting his patients’ privacy rights. And that I understand (though for reasons discussed later, seems like a futile jesture).
In early February, the board filed a motion to compel compliance with the subpoena. Kennedy responded, and evntaully sought to delay the motion because of the pendency of his lawsuit against the board. (And therein lies the possibly clever tactic in filing the lawsuit, filing it in the wrong place and or allowing the case to be in administrative limbo, but I’m just speculating).
The judge didn’t buy it, and on April 15, 2019, granted the board’s request for the medical records.
I think every physician who writes medical exemptions should read the opinion because it shows how the judiciary is going to approach vaccine related issues. I’ll let you folks figure out what those lessons are.
Here it is. It speaks for itself and it speaks loudly.
And in terms of resisting board subpoenas, I think the last time a California court refused the board’s request for medical records was in 2004, the Bearman case. Bob Sears tried it and lost last year. I’ve tried it in two cases in 2016 and 2017 and lost both times, and all the savvy Cali. lawyers have also tried and lost every time. (psychiatric records are still protectable).
The thing about losing a motion like that is that you have to comply because if you don’t, you can be held in contempt, and the conduct is board sanctionable. Of course, you can appeal, but if you don’t get a immediate stay from the appellate court, you get sanctioned for non-compliance without a stay.
So, my guess is that Kennedy’s patient records will be given to the board and the investigation will follow the usual path, interview in a few months, and an accusation by the end of the year. But by that time, the whole doctor medical exemption thing might be ancient history, and the moving vans taking the vaccine concerned out of state to greener PBE pastures will be long gone. But one way or the other, I’m going to predict that Dr. Kennedy won’t be in the vaccine exemption writing business this time next year, based on the brief description in the judge’s opinion.
Rick Jaffe, Esq.