In an order dated February 16th, the Medical Board of California ordered the revocation of Ken Stoller’s medical license for writing 10 medical exemptions that did not comply with ACIP guidelines, and also for not requesting prior medical records for the patients, and using genetic testing information which was not considered scientifically proven.
The order goes into effect on March 18, 2021. We will, of course, appeal (technically called a writ of administrative mandate), most likely by the end of next week. We will also file a request for a stay of the order. We will know if we get the stay within a week or two of filing the stay request, if not sooner.
The Board adopted the ALJ’s proposed decision, and all I can say is that the hearing that Ken and I attended seemed to go a lot better than the one the judge heard. Basically, the judge accepted everything the UC Davis head of Pediatric Infectious Disease, Dr. Dean Blumberg said, that vaccines are proven safe and effective and are necessary for both the childrens’ sake and for the sake of everyone who comes in contact with them, and that it was an extreme departure not to follow the ACIP guidelines or have what he considered to be a valid scientifically established reason not to vaccinate these children. I suppose in the times such are they are, it is not a completely unexpected result.
Here is the decision. But,
Warning: if your child has a current medical exemption, reading the judge’s opinion may cause nausea and/or considerable outrage.
Those of you who heard all or some of the hearing, see how it lines up with your impressions.
The two big issues on the writ will of course be 1. that SB 277 gave Ken and other doctors the right to depart from ACIP/Red Book guidelines and use family history and genetic information to base broader than ACIP contraindications and precautions. The judge said little about that right in her proposed decision. The second main legal-based argument is that Bus. & Prof. Code. Section 2234.1 gives complementary and alternative physicians the right to provide minority view treatment and advice.
Here is what the statute says:
B&PC Section 2234.1
“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.”
I think the judge misread the statute (or read something into it which doesn’t exist, requirement-wise.) But you can decide for yourself.
These are issues of the first impression for the California appellate courts, so I would expect this case to at least make it to the court of appeals. There is no appeal as of right to the California Supreme Court in a case like this, but I would expect that the Supreme Court might well want to weigh in.
This is just the opening round of the first battle. There are a number of other physicians under investigation or under accusation for the same conduct, so this will continue on many fronts.
And regrettably, if the Board’s order is not stayed and goes into effect on March 18, 2021, then all of Dr. Stoller’s medical exemptions could be revoked under SB 276/714, formally via some process, or I suppose informally by the school notifying the family that the medical exemption is no longer valid in light of the board’s order. The community has seen many cases where schools just decide on their own not to honor exemptions in the case of the death of an exemption writing physician, or the child transferring schools within a grade span. So, expect schools to act on their own on this. (And sorry, no individual consultations on this. I will keep posting as we progress or as we receive feedback from the schools from the families who have Dr. Stoller’s medical exemptions.)
Rick Jaffe, Esq.