Ken Stoller’s hearing took place Monday, September 21st until midday Thursday, September 24th. I made an opening on the first day. The Board’s attorney elected not to. The record in the case is still open because, as is not uncommon in these cases, there will be written closing arguments. The board has the burden of proof, so it will file an initial closing statement. I will then do our closing statement in response to the Board’s. The Board gets to reply to my closing, again because the Board has the burden of proof.

Timing-wise, the judge will receive the Board’s reply on November 9th and on that date, the record in the case will be officially closed, the case is deemed submitted to the judge for her to write a proposal for decision (“PFD”).

Under the applicable rules, the judge has 30 days to issue her PFD, which will include findings of fact, conclusions of law, and a recommended sanction, if a violation of the standard of care is found.

The Board has adopted and published disciplinary guidelines which it expects the ALJ’s to follow unless there are stated reasons for departing from them.  Based on the charges in the Accusation (the complaint initiating the Board’s case), the minimum sanction is stayed license revocation with probation for 5 years. The maximum penalty is license revocation. There are other terms which are usually imposed on physicians who have engaged in “extreme” departures from the standard of care, including practice monitoring, additional CME (standard) and even a requirement that the physician’s knowledge and skills be evaluated by the UC San Diego physician evaluation program which is used by medical boards to evaluate the skills of physicians whose conduct has been found to be sufficiently negligent to warrant such.

So what can the Board do with the ALJ’s PFD?

Under the law there Board has five options:

It’s best to state the options as set forth in the statute:

CA Govt Code § 11517 (2017)

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“(c) (1) If a contested case is originally heard by an administrative law judge alone, he or she shall prepare within 30 days after the case is submitted to him or her a proposed decision in a form that may be adopted by the agency as the final decision in the case. Failure of the administrative law judge to deliver a proposed decision within the time required does not prejudice the rights of the agency in the case. Thirty days after the receipt by the agency of the proposed decision, a copy of the proposed decision shall be filed by the agency as a public record and a copy shall be served by the agency on each party and his or her attorney. The filing and service is not an adoption of a proposed decision by the agency.

(2) Within 100 days of receipt by the agency of the administrative law judge’s proposed decision, the agency may act as prescribed in subparagraphs (A) to (E), inclusive. If the agency fails to act as prescribed in subparagraphs (A) to (E), inclusive, within 100 days of receipt of the proposed decision, the proposed decision shall be deemed adopted by the agency. The agency may do any of the following:

(A) Adopt the proposed decision in its entirety.

(B) Reduce or otherwise mitigate the proposed penalty and adopt the balance of the proposed decision.

(C) Make technical or other minor changes in the proposed decision and adopt it as the decision. Action by the agency under this paragraph is limited to a clarifying change or a change of a similar nature that does not affect the factual or legal basis of the proposed decision.

(D) Reject the proposed decision and refer the case to the same administrative law judge if reasonably available, otherwise to another administrative law judge, to take additional evidence. If the case is referred to an administrative law judge pursuant to this subparagraph, he or she shall prepare a revised proposed decision, as provided in paragraph (1), based upon the additional evidence and the transcript and other papers that are part of the record of the prior hearing. A copy of the revised proposed decision shall be furnished to each party and his or her attorney as prescribed in this subdivision.

(E) Reject the proposed decision, and decide the case upon the record, including the transcript, or upon an agreed statement of the parties, with or without taking additional evidence. By stipulation of the parties, the agency may decide the case upon the record without including the transcript. If the agency acts pursuant to this subparagraph, all of the following provisions apply:

(i) A copy of the record shall be made available to the parties. The agency may require payment of fees covering direct costs of making the copy.

(ii) The agency itself shall not decide any case provided for in this subdivision without affording the parties the opportunity to present either oral or written argument before the agency itself. If additional oral evidence is introduced before the agency itself, no agency member may vote unless the member heard the additional oral evidence.

(iii) The authority of the agency itself to decide the case under this subdivision includes authority to decide some but not all issues in the case.

(iv) If the agency elects to proceed under this subparagraph, the agency shall issue its final decision not later than 100 days after rejection of the proposed decision. If the agency elects to proceed under this subparagraph and has ordered a transcript of the proceedings before the administrative law judge, the agency shall issue its final decision not later than 100 days after receipt of the transcript. If the agency finds that a further delay is required by special circumstance, it shall issue an order delaying the decision for no more than 30 days and specifying the reasons therefor. The order shall be subject to judicial review pursuant to Section 11523.

(d) The decision of the agency shall be filed immediately by the agency as a public record and a copy shall be served by the agency on each party and his or her attorney.” (emphasis added)

(Repealed and added by Stats. 1999, Ch. 339, Sec. 2. Effective January 1, 2000.)

What does the Board want to do in this case?

For many reasons, including pressure from the CDPH, I believe that the Board wants to issue some sanction against Dr. Stoller and the other doctors who wrote these broad SB 277 exemptions. That means if the ALJ’s proposed decision exonerates Dr. Stoller, the Board can just reject the PFD and make its own decision, but it will have to comply with the process set forth in E (i) through (iv).  That will take some time, and I would not think that process could not be completed until early next year.

How does this all affect the ME’s that Dr. Stoller has written?

That depends on what the ALJ does. If she finds a violation of the standard of care and issues a sanction within the guideline range, you can expect the Board to quickly adopt the ALJ’s PFD in its entirely. I suspect that will be the case even if the PFD suggests a more lenient sanction than the guideline range, like a public reprimand.

If the Board adopts any PDF mandated sanction, (even a public reprimand which is a disciplinary order), under SB 276/714, Dr. Stoller’s ME’s are voided or voidable once the school districts find out about the order. That could happen as early as mid-December, but will most certainly happen by sometime in January 2021, because of the intense pressure to get rid of all these ME’s. I am guessing it will happen in December.

If the ALJ completely exonerates Dr. Stoller, look for the Board to chose door number (E), non-adopt the ALJ’s PFD, and issue its own decision in the case, presumably following the (E) 1-4 procedure.

Regardless of what the ALJ does, if the Board sanctions Dr. Stoller (or any physician) the physician has the right to appeal to court, (via writ of administrative mandate under the arcane California writ practices) first to a superior court judge then to the Court of Appeals. There is no automatic review by the California Supreme Court for these kinds of cases.

If the ALJ exonerates Dr. Stoller and the Board non adopts, given how strong the record is in the case (we won big time on points, and we actually do have the law on our side), I think there is an excellent chance that the court of appeals would reverse the Board, and perhaps even the superior court. I would even give odds on that happening if the ALJ exonerates. This ALJ is smart and precise (and she has a masters in Genetics). That means the Board is going to have to do some very fancy footwork (including adopting the highly dubious Blumberg interpretation of Senator’s Pan’s infamous remarks to the Assembly in June 2015, which I will explain in another post) to non-adopt the ALJ’s exonerating PFD.

On the other hand, it is very, very hard to reverse the Board’s adoption of am ALJ’s sanction based on a finding of an extreme violation of the standard of care. Not impossible, but you wouldn’t want to bet the farm (or house) on it. And for the reasons stated above, even harder with this ALJ because of her acumen and background. (Caveat, since the fulcrum issue in this case is the interpretation of SB 277 and the application of Bus. and Prof. Code Section 2234.1, and these are legal matters, even if the ALJ rules against us, these matters of law could receive more and more independent judicial attention that weighing the details of a standard of care violation).

So that’s what’s next in the case.

Next for me is 1. to give you my thoughts on the evidence that was adduced in the case, so stay tuned for that, and 2. ROUND TWO. About a week ago, the Board filed an Accusation against Sacramento physician (and our expert at this hearing) Kelly Sutton, MD for …. you guessed it, writing broader than ACIP ME’s for students.

Here we go again.

Rick Jaffe, Esq.