Some have asked for an update on Ken Stoller’s medical board case, and the other board cases I am working on, so here it is.

The Closing Arguments by the parties were submitted to the ALJ on November 9th.

I won’t bore you all with our closing which gets into the weeds of the ten cases, but for grins, here is the introduction. I decided to start by abstracting the whole case and our position.

“To begin, let’s present the core facts of the case in the abstract, like a conceptual symbolic logic problem, devoid of the messy vaccine issues.

A state has a statute which sets-up the physician as a gatekeeper for something people can or cannot do based on a statutorily created physician opinion letter. The statute (or an amendment to it) specifically says that physicians can use “x” factor in making the judgement call as to whether to issue the letter.

There is a federally created general guideline on the subject of the state’s law, which is recognized by a majority of physicians in the country. However, it is much more restrictive than the (amended) state law. The federal guideline consists of a simple chart listing the few factors that do or could justify the physician letter. Unfortunately, x factor is not on the chart. Therefore, using x factor is consistent with the state’s statute, but inconsistent with the national standard.

Some additional abstract facts: Some state statutes (say New Jersey, for example) specifically say that physicians can only write the letter if the national standards are met, and there are no exceptions. But alas, our state is not one of them, perhaps because the state legislature was not intelligent enough to know that it could have followed the New Jersey model and explicitly limited physician letter writing to the national standard which does not include x factor. Or, perhaps there was some political reason requiring the legislature to allow physicians to use x factor to get the bill passed, even though x is not on the national chart. But ultimately it does not matter. As inconsistent as it may be with the national standard, x factor is in the state statute for physician letter writing.

What is the state medical board’s position about this inconsistency, and what guidance does the board give to help physicians to understand the new amended law? None, because it is not what it does, or so it says.  The board leaves it up to each physician to decide how he/she will exercise discretion and use or not use x factor.

A legal fact: Our state has a minority view defense to charges of negligence, gross negligence and incompetence.

When the (amended) law was being debated, the bill’s author emphatically stated to the lower legislative house that even an extreme x factor could be the basis of a physician exercising his discretion and write the letter. He even said that he has been in contact with the medical board and that he received the board’s assurance that using x factor will not cause problems for physicians with the board, which he said should reassure the members of the legislature whom he was trying to convince to pass his bill.

Sitting next to the bill’s author when he made those statements is the physician who is now testifying against the physician for using x factor. He testifies at the disciplinary hearing that there is a national standard, and physicians are not permitted to use x factor in making the letter writing determination because to do so would be a violation of the standard of care. He says that it doesn’t matter what the law actually says, because there is a nationally recognized community standard (i.e. standard of care), and every physician in the state has to follow the national guidelines which do not include x factor, let alone extreme x factor. He insists that only community standards apply, and no physician can rely on the fact that x factor is listed in the law, because there is a national community standard and that standard applies to all physicians in the state. Why? Because there is a community standard, and all physicians are required . . . and on and on it goes into an infinite regressive circular loop.

When the board’s expert is asked why the bill’s author said extreme x would support a letter, he said he didn’t know, but he does say that what the author really meant was that the physician had the power (or technical legal ability) to write the letter, but it would still be a violation of the standard of care, which the board could prosecute and Voila, here he is testifying against the doctor.

Viewed thusly in the abstract, this is not a close case.”

Basically, our view is that SB 277 created a statutory standard of care and allowed physicians to write ME’s beyond ACIP guidelines, and the standards used by Ken and other like-minded physicians are within a minority view standard of care permissible under California law (Bus. and Prof. Code 2234.1).

The judge has 30 days (from November 9th) to submit a proposed decision to the Board. As of mid last week, she had not submitted the decision. The decision gets reviewed by the Board and specifically a panel and eventually it gets to the entire board. The next scheduled full board meeting is in February, but it’s possible the board could act before that date.

The basic choices the members of the board has it to approve the ALJ’s proposed decision or non-adopt it. If the latter, the board members review the record and the parties are give a chance to argue (live or more like on papers) for or against the proposed decision.

Any sanction against Ken’s license means the revocation of all of his ME’s (theoretically at least, but because the change from SB 276 to SB 714 removed the filing of ME’s with the CDPH, it is possible that some of his ME’s could continue to be in force because some might slip in between the cracks, as it were. But for planning/awareness purposes, if you have an ME from him, and his license is sanctioned in this case, you should assume your child’s exemption will be revoked by the school, especially since schools have been rejecting ME’s since the passage of SB 276/714. Of course, some of this does not apply right now  due to the pandemic and lock-downs, but eventually things will get back to normal, so even if your child is not affected right now, it’s something to keep in mind.

Beyond Ken’s case, I represent four other NorCal physicians under scrutiny by the Board. There is a formal accusation against one of them, but no date has been set yet for a hearing, probably because of the pandemic. Two other physicians have had their Board interviews and accusations against them will be filed in the next month or three I suspect. One physician is awaiting the Board interview.  Bottom line for those parents who have ME’s from NorCal docs: I don’t don’t think ME’s written by any of these docs will be revoked during the 2020-2021 school year, just because of timing issues, unless one or more of these cases are settled, and for most of them, that’s not likely to happen in the next few months.

Bottom line: We are waiting for the ALJ’s/Board’s decision in the Stoller case. The ALJ’s decision will be publicly available 30 days after she submits it to the Board, whether or not the Board issues its final decision by that time.

This is the first litigated case on these broader than ACIP ME’s, since all previously charged physicians had signed consent agreement agreeing to be sanctioned (and that would be none of my clients). I have a pretty good idea of the Board’s view on the issues, but no idea how the ALJ will rule. I think we made our case, but you never know. Fingers crossed.

Rick Jaffe, Esq.