For those following the Ken Stoller Medical Board case, here is the latest: The ALJ submitted her proposed decision to the Board on December 8th, that would be last Tuesday. Unfortunately, we are not allowed to see her decision until the earlier of 35 days from its submission to the Board or when the Board issues its decision.

An ALJ’s proposed decision is reviewed by one of two board panels (panel A and B).  The next quarterly public board meeting is in early February, but I think these proposed decisions can be reviewed and decided outside of the scheduled quarterly meetings, and I am betting that that will happen in this case.

Here are the basic possibilities:

1. The ALJ finds departures from the standard of care and imposes the standard sanction of stayed revocation with 5 years probation, and other conditions (for sure, additional CME course work, probably a practice monitor, possibly some kind of skills/competency evaluation via the UCSD highly regarded PACE program). If that is what the ALJ decides, I would expect the Board to quickly adopt her decision and issue the final order. I think that could well happen before Christmas.  The order will be effective 30 days after the signed board final order. At that point, legally the CDPH and the schools have a statutory basis to revoke or not honor (in the case of schools) all of his ME’s.

2. Option 2, because of the unusual nature of the case (there sure appeared to be a different standard of care created by SB 277 and argued by Senator Pan) it is possible that the ALJ could find standard of care violations but impose a substantially less severe and non-disciplinary guideline standard penalty. The only thing the disciplinary guidelines recognize less severe than stayed revocation is a letter of reprimand. Normally that is only available for a single case involving a simple departure from the standard of care. However, recently the Board issued one of these sanctions to a doc who wrote more than one ME’s. I don’t know the details about the circumstances of that case (she wasn’t my client). If that happens, I’m guessing the Board will try to change the sanction. If they don’t, then it would become a sort of a de facto precedent for all of the other board cases against ME writing physicians (and I have four more cases awaiting hearings on this issue).  A letter of reprimand still achieves the goal of rendering all of Ken’s ME’s revocable, revoked, or not honored by any school that finds about the Board order.

3. Option 3: Ken is exonerated because the judge finds that the Board did not prove its case by clear and convincing evidence. It would be great if the Board were to sign off of that result, but that’s not likely. If that what the ALJ finds, the Board panel will issue a non-adoption order and decide the case itself after supposedly reviewing the entire transcript and all the exhibits. The case will be set for an oral hearing sometime in the next several months. Panel A records and puts on the Board’s web site these hearings. Panel B does not.

Under any of these scenarios, dollars to donuts there is an appeal (writ of administrative mandated in California writ practice terminology) in Ken’s future, but we take this one step at a time.

For what it’s worth, if there were a legal computer judge, I think it would be option 3. I don’t think the Board made its case. There is a statutory standard of care concerning writing ME’s which is different from the community ACIP based standard. The Board’s expert, Dean Blumberg, despite his impressive credentials, knew nothing about that standard of care.

Beyond SB 277, California Board law expressly allows physicians to render treatment and provide advice based on a minority or a complementary and alternative standard of care. We proved that there is such a standard regarding issuing ME’s and that Ken’s use of genetic testing in addition to considering family history of autoimmune problems (expressly sanctioned by SB 277 and its principal sponsor, Pediatrician Senator Richard Pan)  established the standard. His medical records contained all the basics of a proper medical intervention (H&P and clear and complete SOAP notes, including extensive informed consent).

It’s really that simple. BUT we live in extraordinary times and there is much fear and hope for vaccines to end the pandemic. Cases are decided by people, most of whom are still sheltering in their homes awaiting for the vaccines to allow them and the country to get back to normal.  It would take a very strong-willed and independent judge to set aside all of what’s going on, and we shall see.

Rick Jaffe, Esq.