Rally Day for Cali SB 276: Keep your eye on the ball!

Rally Day for Cali SB 276: Keep your eye on the ball!

Today, April 24th is hearing day on SB 276, which bill seeks to remove the medical exemption decision making from the physician, and places it in the hands of public health officials, and there’s no requirement in the bill that it be a physician. That seems like a bad idea to me.

On the other hand, I wouldn’t mind seeing some guidelines issued by the Medical Board, similar to the medical marijuana guidelines the board issued after California allowed physicians to recommend medical marijuana. A number of docs got into trouble prior to the issuance of those guidelines, because they had no guidance as to what was permissible until the guidelines or at least until the board issued what it called a “precedential decision.”

The same thing is happening with the doctors who are currently writing vaccine exemptions. I was involved in what is so far the only filed case on a vaccine exlusion, and had a chance to get a look at what the board via its experts think about these cases. They take a very strict view of exemptions under the statutes, basically, there are none, at least there are no complete medical exemptions from all childhood vaccination throughout the duration of childhood for otherwise healthy kids.

I’m also working on some active board investigations involving exemption writing physicians. My sense is that some physicians and their supporters have a completely different view of what is permissible exemption-wise, than all conventional medical authorities. The result of these differences is the reason you’ll be in Sacramento today. But keep in mind a couple things:

First: keep your eye on the ball and focus on the actual issue:

Here’s what today is NOT about, at least from the legislators’ point of view:

It’s not about your personal freedom, your right to refuse vaccines for your children because you think vaccines don’t work or are dangerous, or because of any other personal beliefs you or your vaccine concerned friends might have.
Folks, you lost that battle with the enactment of SB 277, and all the failed lawsuits challenging the law.

It might feel good to try to beat a dead horse, but it won’t revive it.

Today is about convincing the legislators that only physicians who have a doctor/patient relationship should be permitted to make a decision as important as which if any vaccines from which a specific child should be exempted.
THAT’S IT!

If the board has concerns about doctors not following what it might call the standard of care, it has two obvious options; Investigate the physicians, and they are doing that now, and promulgate some guidelines, hopefully with the input of the vaccine concerned community (admittedly perhaps naïve),

However, California law does recognize the right of physicians to adhere to a minority view in medicine, because the California legislature wisely understood that it could take a long time for new thinking to change the medical paradigm. I think that’s a lesson which the legislators should remember.

Here’s what could set you free:

“Universal Citation: CA Bus & Prof Code § 2234.1 (through 2012 Leg Sess)

(a) A physician and surgeon shall not be subject to discipline pursuant to subdivision (b), (c), or (d) of Section 2234 solely on the basis that the treatment or advice he or she rendered to a patient is alternative or complementary medicine, including the treatment of persistent Lyme Disease, if that treatment or advice meets all of the following requirements:
(1) It is provided after informed consent and a good-faith prior examination of the patient, and medical indication exists for the treatment or advice, or it is provided for health or well-being.
(2) It is provided after the physician and surgeon has given the patient information concerning conventional treatment and describing the education, experience, and credentials of the physician and surgeon related to the alternative or complementary medicine that he or she practices.
(3) In the case of alternative or complementary medicine, it does not cause a delay in, or discourage traditional diagnosis of, a condition of the patient.
(4) It does not cause death or serious bodily injury to the patient.
(b) For purposes of this section, alternative or complementary medicine, means those health care methods of diagnosis, treatment, or healing that are not generally used but that provide a reasonable potential for therapeutic gain in a patient s medical condition that is not outweighed by the risk of the health care method.
(c) Since the National Institute of Medicine has reported that it can take up to 17 years for a new best practice to reach the average physician and surgeon, it is prudent to give attention to new developments not only in general medical care but in the actual treatment of specific diseases, particularly those that are not yet broadly recognized in California.
(Amended by Stats. 2005, Ch. 621, Sec. 28.5. Effective January 1, 2006.)”
(emphasis added).

It’s worth a shot!

Good Luck!

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

5 thoughts on “Rally Day for Cali SB 276: Keep your eye on the ball!

  1. Jacobson seemed to put the decision of medical exemptions in the hands of doctors not the public health establishment. Do you think there is a case for a lawsuit here?

    From Jacobson:

    “It is said, however, that the statute, as interpreted by the state court, although making an exception in favor of children certified by a registered physician to be unfit subjects for vaccination, makes no exception in the case of adults in like condition. But this cannot be deemed a denial of the equal protection of the laws to adults; for the statute is applicable equally to all in like condition and there are obviously reasons why regulations may be appropriate for adults which could not be safely applied to persons of tender years.”

    1. I’m told that Jacobson constitutionally requires a medical exemption, but I wouldn’t want to bet that constitutionally speaking it has to be by a medical doctor.
      Better argument might be that it violates the state practice of medical laws, mindful that the CMB is studiously absent from this debate.

Leave a Reply to Nilab Cancel reply

Your email address will not be published. Required fields are marked *