Several vaccine writing California physicians are now under investigation by the California Medical Board. By that I mean that the Board has issued subpoenas to obtain the medical and/or school vaccination records of kids who obtained vaccine exemptions from these physicians. In some cases, the Board investigation is a result of a complaint filed by a parent (usually in a divorce situation where one parent is pro and the other is antivax/vaccine concerned) or by an HMO which acts as the child’s PCP. In other cases, the Board has issued a subpoenas to a school district to identify physicians who have written vaccine exemptions.

In terms of the Board’s ability to obtain patient medical records, the state of the law is that despite the California constitutional right to medical records privacy, in recent times, the California courts have consistently granted the Board access to patient medical records over the patients’ objection.

My view is the fight to protect patient medical records from Board disclosure is basically over in California (except for psychiatric records which are covered by a specific evidentiary privilege which has a higher burden of proof than regular medical records). That brings California in line with pretty much every other state in the country which requires a physician to comply with a board subpoena for medical records, irrespective of the patient’s wishes.

I have no doubt that in all of these investigations, the Board will obtain the medical records of the specific children who are subject of the Board subpoenas.

What will the records reveal? My guess is that in almost all cases, vaccine exemptions were given to healthy children who have a family history or genetic disposition to serious autoimmune conditions. The family history or specific genetic abnormalities, according to the exemption writing physicians, make these children susceptible to severe adverse effects from any and all childhood vaccines, and justify an exemption from all childhood vaccines for some period of time. (This is a distinct minority view at this time).

So, what’s going to happen with these investigations?

(I can speak with some authority because there has only been one Board case, and I worked on it.)

First, after the medical records are reviewed by a Board consultant, the physician will be “invited” to a recorded interview to answer questions from the consultant, the board investigator and the Deputy Attorney General assigned to the case explaining the rationale for the exemption.

(I would advise the physician to be very well prepared for the interview because as the saying goes, “Anything you say will be held against you in a court of [administrative] law.”)

The medical records and the recorded interview will be submitted to two outside medical experts. Both will be pediatricians (if the physician is a pediatrician), and one will be an infectious disease sub specialist. The Board likes to use UC affiliated physicians for added gravitas.

Both will conclude that the exemption was not medically indicated because in essence, there is no medically valid justification for a blanket vaccine exemption for a completely healthy child. Rather, there are specific vaccine contraindications based on each vaccine’s labels, according to the CDC, APA and a bunch of other entities involved in the vaccine issue (to put it neutrally).

Within 60 days from the Board’s receipt of the second expert’s report, an accusation (California term for medical board complaint) will be filed against the exemption writing doctor.

At some point the physician will either fold and accept a stayed revocation/5-year probation or the case will be tried before an administrative law judge who will issue a proposal for decision which proposal will then be reviewed by the Board.

When will this all happen?

My guess is that the accusations against the doctors currently being investigated will be filed by early to mid-2019. At least one of the cases (hint, the one I’m involved in) will go to hearing by late 2019, making the Board’s decision in late 2019 to early 2020. The board has a few months to consider the ALJ’s proposed decision. At that point, the vaccine concerned community and the exemption writing physicians should have an idea of whether these vaccine exemptions will be allowed or are Board disciplinable offenses.

It’s going to be interesting, and there will be some surprises, I promise!

Rick Jaffe, Esq.
www.rickjaffe.com
rickjaffeesquire@gmail.com