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Can the Cali. Medical Board Obtain Your Child’s Medical Records Without Your Consent?

Can the Cali. Medical Board Obtain Your Child’s Medical Records Without Your Consent?

This is the question de jour in light of the Sacramento Bee’s recent article revealing that the Medical Board has sought the medical records of several vaccine exemption writing physicians in Northern California.

The short answer is that it can if it has “good cause”.

In practice, that means the Board has to present a clear and specific reason why the medical records are needed to determine if the physician violated the standard of care, or some other law which the Medical Board oversees and enforces.

An explanation and context

I have litigated medical board cases in most of the states in this country. In every state that I have worked in, including California, medical boards are HIPAA exempt, meaning a physician can turn over HIPAA protected medical records without violating HIPAA.

In every state that I have worked in, EXCEPT CALIFORNIA, a physician is unconditionally required to turn over to the medical board medical records implicated in a complaint, via a request for records or a subpoena. Failure to do so is a medical board sanctionable offense.

California is more complicated. In 1979, a California appellate court held that patient medical records are protected by the then recent amendment to the state constitution which created a privacy right. According to the court of appeals, the constitutionally protected privacy right in medical records required the Board to show good cause and a compelling state interest for the records.

For those wanting a deep dive, here is that landmark case. (You will love this opinion, but don’t get too excited about it)
https://law.justia.com/cases/california/court-of-appeal/3d/93/669.html

The precedent was reaffirmed in subsequent cases. However, it has been whittled down in two important respects. First, subsequent cases acknowledged that there other important rights which compete with the patient’s privacy right, like the government’s right to investigate misconduct, and that right sometimes take precedence over an individual’s privacy rights to protect personal information. The net result of that was the Medical Board now only has to show good cause.

Second, the Board figured out how to make a convincing case to a judge to establish good cause. It submits a statement (declaration) from a physician outlining why the records are needed to properly evaluate a complaint. The declaration also suggests why the information the Board has is evidence of a violation of law, but the records are needed to support, confirm, or show that there was no violation.

From 2005 until last year, there were no cases (or none that I could find) which denied the Board access to a physician’s medical records, (except mental health records which have stronger protection).

For the deep divers, in 2017 the California Supreme Court weighed in and affirmed/cited with approval many of these cases which ordered physicians to produce medical records, because the Board’s need to investigate misconduct and protect the public was held to be more important that the patient’s right of privacy.

Here is the decision:
https://law.justia.com/cases/california/supreme-court/2017/s219811.html

This year there have been two cases which have denied the Board’s request for records, but they probably do not apply in the vaccine context in light of what I will say next.

The two recent on point cases

Since October 2018, there are been two court cases to compel vaccine exemption writing physicians to turn over their medical records for vaccine exemption patients. Both cases resulted in the court ordering the physician to comply with the subpoena. The case involving Bob Sears’ medical records is not enlightening, except it shows the assembly-line nature of the justice physicians often receive in these kinds of proceedings. But for what it’s worth, here is that ruling.

sears1
page2

(I should note that I have been involved in two of these motions to compel compliance with a Board subpoena, unrelated to vaccine issues. In both cases, the physician was ordered to turn-over the medical records, and in both cases, the decisions looked alot like the Sears decision.)

The second case involves Ron Kennedy. For better, but mostly for worse, the judge lays out his reasoning, including the above-mentioned weighing of competing rights. The judge also opines on the problems he found with the exemptions, including the fact that they are not vaccine specific, which he thinks is required. You should read this short opinion, even though it will distress you, because you need to know how judges think about these issues.

ordercompelingcompliance

Kenney appealed the decision. The court of appeals gave him a short reprieve from the lower court’s order to turn over the medical records, (and that was a nice legal result). However, as recently reported by the San Francisco Chronicle and much commented on in social media, the court of appeals denied his request for a stay pending appeal (called a supersedeas) of the superior court’s decision. The court indicated that so far, it thinks the lower court was correct in ordering Kenney to turn over the records. The court of appeals opinion denying the stay is not binding, but it is an indication of its current thinking based on its initial review the record in the case.

Reports are that Kennedy has complied with the order to compel and has given the Board the records.

In the future, any doctor who forces the Medical Board to go to court for an order compelling compliance with its subpoena for medical records, will have to explain why the judge should not come to the same conclusion as the fellow judges in these two cases. Not impossible, but an uphill battle.

More distressing, if Kennedy continues with his appeal and court of appeals affirms and adopts the criticisms of his exemptions as a basis for the Board’s needing the medical records, that would be unhelpful for many reasons, and would be binding on lower courts.

In short, right now, barring a different and better set of circumstances presented to a court, the Medical Board does appear to have the right to obtain your child’s vaccine exemption medical records. Courts deciding these cases have found, and most likely will continue to find, that the Board’s need to investigate possible misconduct and “protect the public” takes precedence over your family’s state constitutional privacy right.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

A Very Short Response to the 11 Reasons Thing Circulating on FB Vaccine Aware Pages

A Very Short Response to the 11 Reasons Thing Circulating on FB Vaccine Aware Pages

Many people have asked me to comment on a post raising 11 reasons (I think that’s the number) why SB 276 is illegal. I glanced at it quickly. Although I acknowledge and appreciate the effort, most or all of the points and discussion is recyled from arguments raised and rejected in prior court cases.

There were at least four challenges to SB 277 in state and federal courts, all of which were rejected. The lawyers who challenged SB 277 were smart, articulate, wrote very good papers and raised every conceivable issue, and they all lost. Here are three of the SB 277 decisions.

Whitlow v. California, 203 F.Supp.3d 1079 (S.D. Cal., 2016)

Love v. State Dep’t of Educ., 29 Cal.App.5th 980, 240 Cal.Rptr.3d 861 (Cal. App., 2018)

philipscase

Here is a family law case in which the religious right to oppose mandatory vaccination was rejected. Price v. Price (In re Marriage of Price) (Cal. App., 2019)

Here is a West Virginia federal case which you should read because it involves a physician written medical exemption rejected by school authorities.
https://www.ca4.uscourts.gov/Opinions/Unpublished/092352.U.pdf
(Spoiler alert: The court of appeals upheld the rejection, and rejected the religious argument as well). This case will be cited and discussed in detail by the Attorney General’s Office in every forthcoming SB 276 legal challenge.

If you read these decisions, you will get a better understanding of the law and how judges think (primarily relying on the limbic parts of their brains). Caution, it will depress and/or anger you.

I have addressed the discrimination argument against mandatory vaccination in a prior post. Here it is: http://rickjaffeesq.com/2019/05/24/sorry-cali-vaccine-concerned-but-i-dont-think-medical-discrimination-is-a-valid-basis-to-challenge-sb-276/
The short of it is that it’s a non-starter.

Neither HIPAA nor FERPA provide a private right of action for a state government agencies violation of these federal statutorily created rights.

While it is true that appellate courts sometimes change the law, for reasons which I stated many times, in the vaccine context, it is really an uphill battle.

That being said, SB 276 involves medical exemptions, not personal belief and religious exemptions. To me that means that a successful challenge cannot focus on the usual suspects, i.e., claims like substantive due process, education rights, religious choice, medical freedom, but something different. So, keep up the thinking and interacting about these issues, and maybe one of you will come up with something that might work.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Grandfathering of Current Medical Vaccine Exemptions under the July 1st version of SB 276? Don’t Believe it!

Grandfathering of Current Medical Vaccine Exemptions under the July 1st version of SB 276? Don’t Believe it!

Some of you might be thinking that because Secction 120372 (c)(2)(B) has been struck through, that currently exemptees are grandfathered and continue to be valid or are unreviewable.

I do not think that is the case, I think there was either an error in drafting or another change small amendment is coming, but even if not, I think the department of health will take the position that it can revoke SB 277 exemptions.

First, here is what was struck through/deleted in this version:

“(B)If a local public health officer determines that a medical exemption granted prior to January 1, 2021, and submitted to the department pursuant to this paragraph is fraudulent or inconsistent with applicable federal Centers for Disease Control and Prevention (CDC), federal Advisory Committee on Immunization Practices (ACIP), or American Academy of Pediatrics (AAP) criteria for appropriate medical exemptions, the local health officer may provide the information to the State Public Health Officer. The State Public Health Officer may revoke the exemption upon the request of the local public health officer.”

But the new version achieves the same result indirectly, albeit arguably with some ambiguity

Focus on subsections (c) and (d) of 120372:

(c) (2) provides that an SB 277 exemption has to be submitted for inclusion in a “state database.” to continue to be valid.

(d) (8) provides that “a clinically trained immunization program staff member who is a physician and surgeon or a registered nurse may review any exemption in the CAIR or other state database as necessary to protect public health.”

So we know that SB 277 exemptions can be reviewed to protect the public health. The best way to protect the public health (from their point of view) is to revoke an exemption which was improperly given because it didn’t meet the standard of care guidelines. And that is what I expect the department of health to do under its review power set out in subsection (d)(3).

It was pointed out to me that this subsection refers to medical exemption “forms” and the forms are SB 276 created, and SB 277 exemptions were more like letters.

here is the operative provision:

“(3) (A) The department shall identify those medical exemption forms that do not meet applicable CDC, ACIP, or AAP criteria for appropriate medical exemptions. The department may contact the primary care physician and surgeon or issuing physician and surgeon to request additional information to support the medical exemption.
(B) Notwithstanding subparagraph (A), the department, based on the medical discretion of the clinically trained immunization staff member, may accept a medical exemption that is based on other contraindications or precautions, including consideration of family medical history, if the issuing physician and surgeon provides written documentation to support the medical exemption that is consistent with the relevant standard of care.
(C) A medical exemption that the reviewing immunization department staff member determines to be inappropriate or otherwise invalid under subparagraphs (A) and (B) shall also be reviewed by the State Public Health Officer or a physician and surgeon from the department’s immunization program designated by the State Public Health Officer. Pursuant to this review, the State Public Health Officer or physician and surgeon designee may deny or revoke the medical exemption, as applicable. revoke the medical exemption”

I think the argument puts too heavy a burden on the word “forms”. Absent clear and explicit legislative clarification, I think you should all assume that SB 277 exemptions are subject to the same review AND REVOCATION PROCESS as SB 276 medical exemptions, and react accordingly.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Fast Take on the July 1, 2019, SB 276 Amendment

Fast Take on the July 1, 2019, SB 276 Amendment

Because of the press of other business, this is going to be short and quick.

The new amendment is at least as bad as the prior version, because it does not change the two main operative provisions, 1. All Exemptions are still reviewable and revocable by the health department if they do not comply with the established guidelines, and 2. Physicians who write exemptions beyond these guidelines will be reported to the Medical Board for prosecution.

here is the link to the current marked up bill.
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB276

Here are the key takeaway points:

All Exemptions (meaning exemptions under the new law and those given under SB 277) are still reviewable by the state and/or local department of health, but now they are reviewed by physicians or nurses. That is obviously intended to resolve the criticism that the bill did not specifically require physicians to make these important medical decisions. Including nurses, still doesn’t resolve the problem, in my opinion.

Physicians who write exemptions which do not comply with CDC, ACIP, or AAP guidelines will be contacted for additional support. (My view is that the health department will find insufficient support for any exemption inconsistent with the above guidelines)

The health department can revoke a medical exemption that does not meet the above guidelines, but as in the previous version, “family history” can be considered, in the department’s discretion. But as before, don’t expect that to mean anything other than what is in the guidelines.

There is now a more flushed-out appeal process involving a panel of medical doctors. But don’t expect any reversals of revocations of exemptions, because they are all reading from the same hymn book (the Pediatric Infectious Disease Red Book).

There are provisions about what happens to the child with a revoked exemption during the appeals process. There is a grace period, which is about the only good news in this version. It is too early to tell how long that grace period will last, but it ends when the appeal is denied, or possibly 30 days thereafter.

In short and obviously, this version does not resolve the concerns raised by the vaccine aware.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

What About Home Schoolers under SB 276?

What About Home Schoolers under SB 276?

Some people are worried about the effect of SB 276 on home schoolers. Let me allay those fears. The current bill does not mention, nor does it affect home schooling your own children. Meaning, you do not have to vaccinate your children under SB 276, if they are home schooled. (I am not talking about Charter Independant Study Schools, which is adifferent and more complicated question, and one which there might not yet be an answer.)

At least one major blogger (and Larry Cook, I mean you) is worried or predicting that home schoolers are Senator Pan’s next target, either with an amended SB 276 or some other bill.

Here are my 2 cents: I do not see that happening as an amendment to SB 276 for tactical and strategic reasons. Tactically, I think it is too late in the bill’s life to add such a big change. More importantly, on a strategic and constitutional level, it would make a successful constitutional challenge much more likely. It would not be worth the risk, given how far the current version of SB 276 goes to eliminate unvaccinated children from the schools, and achieving that goal would/will be a very big deal for Senator Pan and his supporters.

There is a distinction which the vaccine concerned often forget; the difference between mandatory vaccination to utilize some public benefit (or right) like attending school, (or a person providing health care to the public), versus compelled or forced vaccination, with no opt-out (like the $5.00 fine in Jacobson).

A law requiring vaccination of home school children is compelled vaccination, because all children have to go to school or be home schooled. We are not there yet with compelled/forced vaccination, either with the public or the courts. Not yet anyway, and not in California. That is my opinion anyway.

An easier move would be the idea Senator Pan floated before SB 276, i.e., some kind of children’s bill of rights for vaccine protection, coupled with the state’s power to enforce that right. That would turn every home schooler into a potential child abuse victim. That approach and and compelled vaccination are hard sells, but who knows what the future will bring.

But for now, and in this legislative session, I think the home schooler families have nothing to worry about. I think Senator Pan will keep his eye firmly fixed on his current target, which is the elimination medical exemptions beyond CDC guidelines, and making sure that physicians will be sufficiently disincentivized from trying to circumvent them.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Does Senator Pan Have a Conflict of Interest by Proposing and Advocating for SB 276?

Does Senator Pan Have a Conflict of Interest by Proposing and Advocating for SB 276?

I will tell you up-front that I will not answer the titled question in this post because I do not have personal knowledge about Senator’s Pan’s finances and business affairs. However, I will say that I have NOT seen any evidence of a conflict of interest, as that term is defined by the relevant California law.

The real purpose of this post is 1. to provide the vaccine concerned community with the actual law, and 2. to respectfully suggest that you all conflating the legislators’ statutory and rule-based conflict of interest obligations, with the the completely different issue of whether it is right for politicians, especially influential politicians, to take campaign contributions from industries which have business interests before the legislators, and whether a legislator should sponsor legislation that will benefit an industry which has made campaign contributions to the sponsor.

To put it another way, I am writing this post (to the annoyance of many I assume) because I see a great deal of unsupported allegations and incorrect analysis complaining about the conflict of interest of Senator Pan and others. And like I keep telling you folks, you have to be right about what you say.

We all know that corporations and commerical ventures give money to politicians to influence what laws are written and what the laws say. It might not be right or moral, but it is legal. Deal with it! The fact that Senator Pan received the highest amount of campaign contributions from Pharma is not illegal, nor is it a conflict of interest. It just means that Phama thinks he is the most important player in its areas of interest, and/or he has a fundraiser with good access to Pharma. That is the way the system works in the U.S. If you don’t like it, change it, or move someplace purer.

What if Senator Pan makes alot of money from Pharma for something other than campaign contributions?

As long as he is not taking a bribe, it is not illegal. Roughly, a bribe/public corruption is money (or other things of value) offered and accepted on the specific promise/agreement that the government official will help pass or kill a bill (or executive act for the executive branch) that will directly benefit the entity which gave the money, or basically a quid pro quo.

You might recall the recent case of former Virgina Governor Bob McDonnell whose bribery/public corruption conviction was overturned, even though he accepted all kinds of gifts (including a rolex) from someone who would directly benefit from something the Governor could do. Even that was not enough for a public corruption conviction to stick. There has to be an explicit and provable quid pro quo. Here is an article about the case to show you what public corruption is not (according to the Supreme Court). https://www.nytimes.com/2016/09/09/us/us-ends-corruption-case-against-former-virginia-governor.html

Working in the California Legislature is a part-time job. All these folks have other jobs, and I am sure that some of their jobs intersect with legislation, and further the interests of the industries which give campaign money, but that is not make it illegal or a conflict of interest.

So what would be a conflict?

Let’s start with the Legislative Rule:

“A public official shall not participate in any action or decision by the legislature, including votes, if a conflict of interest exists. Cal. Gov’t Code § 87102.5.Legislators may not participate, by voting or any other action, on the floor of either house, or in committee or elsewhere, in the enactment or defeat of legislation in which he or she has a personal interest.” Joint Rule 44.

Here is Government Code, Section 87102.5 (I am giving the whole section so you can work through the issues yourselves.)

“(a) The remedies provided in Chapter 3 (commencing with Section 83100) shall apply to any Member of the Legislature who makes, participates in making, or in any way attempts to use his or her official position to influence any of the following governmental decisions in which he or she knows or has reason to know that he or she has a financial interest:
(1) Any state governmental decision, other than any action or decision before the Legislature, made in the course of his or her duties as a member.
(2) Approval, modification, or cancellation of any contract to which either house or a committee of the Legislature is a party.
(3) Introduction as a lead author of any legislation that the member knows or has reason to know is nongeneral legislation.
(4) Any vote in a legislative committee or subcommittee on what the member knows or has reason to know is nongeneral legislation.
(5) Any rollcall vote on the Senate or Assembly floor on an item which the member knows is nongeneral legislation.
(6) Any action or decision before the Legislature in which all of the following occur:
(A) The member has received any salary, wages, commissions, or similar earned income within the preceding 12 months from a lobbyist employer.
(B) The member knows or has reason to know the action or decision will have a direct and significant financial impact on the lobbyist employer.
(C) The action or decision will not have an impact on the public generally or a significant segment of the public in a similar manner.
(7) Any action or decision before the Legislature on legislation that the member knows or has reason to know will have a direct and significant financial impact on any person, distinguishable from its impact on the public generally or a significant segment of the public, from whom the member has received any compensation within the preceding 12 months for the purpose of appearing, agreeing to appear, or taking any other action on behalf of that person, before any local board or agency.
(b) For purposes of this section, all of the following apply:
(1) Any action or decision before the Legislature means any vote in a committee or subcommittee, or any rollcall vote on the floor of the Senate or Assembly.
(2) Financial interest means an interest as defined in Section 87103.
(3) Legislation means a bill, resolution, or constitutional amendment.
(4) Nongeneral legislation means legislation that is described in Section 87102.6 and is not of a general nature pursuant to Section 16 of Article IV of the Constitution.
(5) A Member of the Legislature has reason to know that an action or decision will have a direct and significant financial impact on a person with respect to which disqualification may be required pursuant to subdivision (a) if either of the following apply:
(A) With the knowledge of the member, the person has attempted to influence the vote of the member with respect to the action or decision.
(B) Facts have been brought to the members personal attention indicating that the action or decision will have a direct and significant impact on the person.
(6) The prohibitions specified in subdivision (a) do not apply to a vote on the Budget Bill as a whole, or to a vote on a consent calendar, a motion for reconsideration, a waiver of any legislative rule, or any purely procedural matter.
(7) A Member of the Legislature has reason to know that legislation is nongeneral legislation if facts have been brought to his or her personal attention indicating that it is nongeneral legislation.
(8) Written advice given to a Member of the Legislature regarding his or her duties under this section by the Legislative Counsel shall have the same effect as advice given by the commission pursuant to subdivision (b) of Section 83114 if both of the following apply:
(A) The member has made the same written request based on the same material facts to the commission for advice pursuant to Section 83114 as to his or her duties under this section, as the written request and facts presented to the Legislative Counsel.
(B) The commission has not provided written advice pursuant to the members request prior to the time the member acts in good faith reliance on the advice of the Legislative Counsel.”
https://california.public.law/codes/ca_gov’t_code_section_87102.5

(There are some other laws, but I think this is the main and most relevant one)

I have heard that Senator Pan makes a very great deal of money.

That is not illegal, and it is not a conflict of interest.

Honestly, the whole notion that he or anyone else can have a conflict of interest because he/they take money from “Pharma” or “Big Oil” or even the Nutritional Supplement industry is ridiculous. That’s not what a conflict of interest or a bribe is; That is legal campaign contributions from an industry source. What big contributions show is who is on the side of that particular industry.

So, if you want to call-out Senator Pan because you don’t like the fact that he and almost all other legislators take large campaign contributions from big powerful industries, or because he, like most Congressfolk, seems to do Pharma’s bidding, ok, but he’s just doing what most of them are doing.

That is not a conflict of interest and it certainly isn’t bribery or public corruption. If it were, you’d have to throw them all out of office and lock’em all up!
Hmmm.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Update on Dr. Stoller’s Lawsuit against the San Francisco City Attorney

Update on Dr. Stoller’s Lawsuit against the San Francisco City Attorney

The San Francisco City Attorney’s Office has not yet filed an answer to Dr. Stoller’s lawsuit. (It will do so in the next week or two.) And still no separate lawsuit to compel compliance with his administrative subpoena, which is what I was expecting, but I think it may still be coming.

The discovery phase of most civil cases does not start until after the defendant answers the complaint. However, there is a way to start discovery sooner, and that is what I have done. Specifically, I have requested that the City Attorney’s Office provide all communications between his office and Senator’s Pan’s office, the Medical Board, and a certain law professor who seems to think that nuisance lawsuits against the families of unvaccinated children is a good idea. The City Attorney has 30 days to submit a response to our request. Sometimes civil litigation is about as exciting as watching paint dry. Sometimes it’s not.

On the SB 276 Front

Yesterday, a slightly revised version of the bill was dropped. I haven’t had the chance to look it over, but at this point, I wouldn’t expect any major concessions. If there is anything significant, I will follow-up. This is shaping-up to be a party-line issue, which is disappointing.

I keep hearing how much Senator Dr. Pan profits from his vaccine giving, and how he is in the pocket of pharma, but it seems like it is all just unsupported speculation, extrapolation and/or generalization.

Now if there was actual evidence of his personal connection to pharma, and I mean a document which shows that he is doing what he’s doing in order to advance Pharma’s interest, at the expense of his patients or children in general, or a document with his name on it which shows some unsavory action, that would be entirely different.

So, if there is a smoking gun out there, now would be a good time for it to surface. If not, then all the unsupported or generalized chatter about Senator’s Pan’s conflict of interest because he makes money from administering vaccines (as all pediatricians do) is really just feel-good preaching to the choir and will not change the mind of democrats toeing the party line. It also furthers the narrative about vaccine misinformation being spread by opponents of SB 276 and the vaccine concerned community in general. This is fueling social media and commerce sites efforts to limit your access to the internet. Regrettably, that puts you between a rock and a hard place. So it is something to consider.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

To New York vaccine injured, religiously vaccine exempt families

To New York vaccine injured, religiously vaccine exempt families

As all New Yorkers who have/had a religious exemption to vaccination now know, A2371 which is now the law, eliminated the exemption. If you had the religious exemption, you probably received a letter telling you that you have until June 28, 2019 to come into compliance with the initial doses of all required vaccines.

That is between 4-6 shots of maybe 8 to 10 different vaccines. That seems like alot of vaccines to receive in a couple weeks, in light of the current standard CDC, APA etc vaccine schedule. However there is a CDC “catch up schedule.” I know that in the past some children have received all the catch-up schedule vaccine shots and have been injured.

Ideally, we are looking for a child who got all the shots, had a serious adverse reaction, and then the familiy stopped vaccinating the child and their other children under the a religious exemption.

If that’s you, and don’t mind telling your story to the public, shoot me an email. At this point, me and some of my lawyer friends are looking into possible legal action. No decision has been made, and it will in part be determined by who could be the plaintiffs. No plaintiff will have to pay legal fees if a case is commenced.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

This post may be considered to be ATTORNEY ADVERTISING under New York law. See my home page for details about me, including my CV, office address, areas of interest, and scroll through my posts to see my position on this and other relevant health issues.

Some Perspective on Today’s SB 276 Health Committee Hearing, and the need for a rethink about exemptions (and think humanitarian exemption)

Some Perspective on Today’s SB 276 Health Committee Hearing, and the need for a rethink about exemptions (and think humanitarian exemption)

Today will no doubt be gut-wrenching for you, as you watch the hearing and merely state your name and opposition to the latest iteration of SB 276. Regrettably the nature of the hearing does not afford you the opportunity to relate your stories of prior vaccine injuries to your child There will be opportunities to do so, in different contexts, after the bill passes through the Health Committee and the Appropriations Committee (and let’s be realistic, that’s most likely going to happen).

Because this is essentially a new bill (in form anyway), I am told it has to go back to the Senate for reconsideration. So theoretically, there is another opportunity to make the case in opposition to the Senate. But let’s be realistic. SB 276 passed the Senate under the version which removed the physician’s ability to make medical vaccine exemption decisions. The new version, in form at least purports to give the decision back to them. But as I’ve shown in my last post, it really doesn’t.

It seems obvious that the national context right now is against exemptions of any kind, at least in states which have experienced measles outbreaks. Any state which has some kind of PBE or religious exemption is just one outbreak away from legislation removing the exemption, and that’s assuming there is no national movement (some might call it a conspiracy) to remove these exemptions everywhere.

Because of this, and the extremely limited scope of CDC based medical exemptions, I think the whole exemption issue needs to be rethought. In California, it needs an immediate rethink, because it could positively impact the SB 276 debate.

What I have learned from talking to the families of Ken Stoller’s patients (and the families of other broad exemption writing physicians) is that most of you vaccinated one of your children, and that child was seriously and, in many cases, permanently injured. As I pointed out in many prior posts, Congress recognized that vaccines would cause such severe and permanent injury is a small group of children. You are the families of those children, and something needs to be done to protect these kids and your other children.

One of the reasons why people like you are so vilified by the press and the authorities is because they think you are selfishly endangering other people. There are two asserted bases of this belief. First, herd immunity. Second, the children who cannot be vaccinated under CDC guidelines because of age, or being temporarily immunocompromised, most often from cancer chemotherapy. In other words, the greater good and need to sacrifice argument.

That got me thinking. Isn’t one child sacrificed to the greater good enough? Why shouldn’t that be reason enough to get an exemption, one based on humanitarian considerations.

Think “Saving Private Ryan”

In WWII, because so many families were losing multiple sons, the Army developed a rule protecting a family’s other children.

Maybe there should be a humanitarian exemption added to SB 276, for the vaccine injured families.

The natural question would be how does a family prove that the injury was caused by vaccines?

Well I have an answer for that which is grounded in current vaccine law.
They don’t have to. There should be a presumption that the injury was caused by the vaccine if the symptoms or injury occurred in a close temporal proximity. The state would have the burden of proving to an administrative law judge that there was some other specific cause of the injury, based on published studies. That is the way it works currently in the majority of vaccine court cases. So there shouldn’t be a problem with the burden shifting approach. Congress and the he vaccine court and immunity act recognized, that it’s impossible to show a causal connection in any one case. An injury in some circumstances and some proximity is proof enough for the vaccine court, in some illnesses. There is no reason why it should not be the case in an exemption context.

The humanitarian exemption would not protect all children who might suffer an adverse event from a vaccine. Protecting them is going to require defeating SB 276. But if there was a humanitarian exemption added to SB 276, it would protect the most vulnerable families and from what I can tell, these are most of the families who are receiving medical exemptions from the few physicians still writing them.

So how do we get there?

First, a bill has to be drafted. I’ve reached out a bit and I think that can happen.

Second, potential sponsors have to be approached. It would be nice if sponsors could come from both parties in both houses.
And then comes the stories, and that will be your chance to make yourself heard.

If any of you read this in line to speak today, maybe tell the Members that you support a humanitarian exemption for the vaccine injured, and let them know what’s coming.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com