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Kenneth Stoller MD v. SF City Attorney et al, pending in the San Francisco Superior Court: The Short Version

Kenneth Stoller MD v. SF City Attorney et al, pending in the San Francisco Superior Court: The Short Version


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.

Fact 1:

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.

Fact 2:

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.

Fact 3:

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.

Fact: 4:

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.

Fact 5:

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)

Fact 6:

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.

Conclusion:

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.
rickjaffeesquire@gmail.com

SB 276 new amendment filed. It was a head fake not a curve ball/tactical retreat benefiting Current Exemptees: Sceptics 1, Hypocrite accusers 0, People (like me) who were relieved and grateful 0

SB 276 new amendment filed. It was a head fake not a curve ball/tactical retreat benefiting Current Exemptees: Sceptics 1, Hypocrite accusers 0, People (like me) who were relieved and grateful 0

As most of you already know, Senator Pan’s amendment was filed yesterday afternoon, May 17th. Here it is.

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB276

Unfortunately, it doesn’t protect the children with current exemptions (or it does, if you’re in the mainstream). Friends and commenters have correctly analyzed the bill. No sense reinventing the wheel on this. Here is some of new bill language, related by one commentator:

There is no “grandfathering” in the amended text:
(d) If the State Public Health Officer or a local public health officer determines that a medical exemption submitted to the department is fraudulent or inconsistent with applicable CDC guidelines, as specified in paragraph (1) of subdivision (a), the State Public Health Officer or local public health officer may revoke the medical exemption.

Here is the skinny on the amendment from one popular professional source:

So, obviously the rumors about grandfathering in existing VMEs were FALSE. The amendment language simply states that CDPH isn’t required to review or approve old exemptions, BUT they still CAN if they decide to. Doctors and their patients will still have to re-submit all older exemptions into the NEW SYSTEM, and part of the new system is a CONSENT for the release of medical records to the medical board. This will open up ALL old medical exemptions to medical board investigation. HOWEVER, doctors can only submit an old exemption if there is a contraindication or precaution, which 99.9% of them won’t have, so doctors won’t be able to re-submit these. If a doctor doesn’t re-submit the old exemption, then it becomes invalid Dec 31, 2020. And they can’t re-submit without a contra or precaution. Any that they DO submit will be investigated by the medical board. It’s totally bogus, and actually has made the bill WORSE, not better.

So, where are we?

Back to where the bill was before the May 17th amendment:
Under SB 276, there will not be any medical exemptions beyond CDC contraindication and CDC precautions, and expect that all current exemptions will be voided by the state or local health officials.

I have to give credit to Senator Pan. He is a very skilled politician. He knew what he had to do to get his bill through the appropriations committee, and did it by creating the illusion of a tactical retreat which suggested that there would be less of a financial impact than the critics stated. And he did it without making any tactical retreat whatsoever, and without changing the underlying economic costs of the bill. I’m sure you all hate it, but for better and worse, that’s politics.

Senator Pan is doing his job very effectively. Time for you all to move on to the next phase of the battle and be effective.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com